By Peter McLellan, QC

In the 1970s the issue for employers was long hair and sideburns. In the 1980’s it was earrings for men. Today the employer’s concerns are with tattoos and facial piercings. What are the employer’s rights?

The answer on hiring is simple and straightforward – an employer can legally choose not to hire based on any (visible) tattoos or piercings. There would be no violation of the Human Rights Act and the Charter of Rights and Freedoms is not relevant. This simple statement applies whether it is a unionized workplace or a union free workplace (and it is to be noted that approximately 85% of Nova Scotian’s work in a workplace without a union). The only exception to the above is if the piercings or tattoos could be said to be part of an ethnic or tribal custom. Since the “discrimination” is legal, it follows that the employment ads can clearly state that no applications will be considered from applicants with visible tattoos or piercings.

The important question, however, for employers is whether such a restriction would mean that capable and qualified individuals would not be considered for hiring. This is particularly so where the prospective employment is not in a public place and the appearance of an employee would not have any negative effect on the employer’s business – i.e. positions in software development, in manufacturing locations, etc. Employers have to be careful to ensure that any restrictions do not effectively work against their own best interests.

The situation is more complicated after an employee has been hired. Here the employer’s rights differ greatly depending on whether it is a unionized workplace or a non-union workplace.

Non-union workplace

Here there are no legal restrictions on prohibitions by employers against tattoos and piercings. Simply put the employer’s rights are as broad as noted above with respect to hiring. Again employers should be careful not to create rules or prohibitions that would deprive itself of capable and qualified employees by an overly restrictive rule.

Unionized workplaces

Once hired, employers have more restrictions respecting personal appearance in the unionized workplace. Still the Human Rights Act does not apply. However, in a unionized setting employees have the right of arbitration and arbitrators have consistently ruled that workplace rules must be “reasonable”. The law in this area has been settled since 1965 in a case called KVP Co. Ltd which established that a rule unilaterally introduced by an employer (and not subsequently agreed to explicitly by the Union) must satisfy the following requisites:

1. It must not be inconsistent with the collective agreement;
2. It must not be unreasonable;
3. It must be clear and unequivocal;
4. It must be brought to the attention of the employee affected before the employer can act upon it;
5. The employee concerned must have been notified that a breach of such rule could result in his/her discharge if the rule is used as a foundation for discharge; and
6. Such rule should have been consistently enforced by the employer from the time it was introduced.

Specifically with respect to tattoos and piercings, the question becomes whether the rule is “reasonable” and in turn that relates to whether there is a business-related concern – personal views and biases of managers are not relevant. In a hospital setting in the Ottawa area an arbitrator struck down a ban requiring that “large tattoos” be covered up and employees not display “excessive body piercings”. The Arbitrator had this to say with respect to the link between human rights and tattoos and piercings:

“But while tattoos and piercings are not protected under human rights laws, the evidence in this case was clear that many of the employees regard those aspects of their appearance as an important part of their identity. The hospital could not and would not accede to the wishes of a patient who might be uncomfortable with a care provider based on the employee’s race or ethnic identity, even though some patients might harbour those types of prejudices. However the hospital seems willing to comply with other types or prejudices that have no link to the quality of the health care received by the patient.”

The takeaway – in unionized settings – there needs to be evidence that there is real business-related concern which will be difficult bearing in mind the above quote – i.e. employers must comply with all of the protected characteristics in the Human Rights Act – no matter what the customer or patient wants – and it will be difficult to distinguish those required accommodations with concerns regarding visible tattoos and body piercings. The clearest path for a unionized employer is to have the restriction expressly contained in the collective agreement.

To our knowledge no jurisdiction is contemplating any change to human rights legislation to prohibit discrimination on the basis of personal appearance. So, for the future, everyone is unrestricted with respect to concerns regarding visible tattoos and piercings with respect to hiring. As noted, the rules differ once an individual is hired depending upon whether it is a unionized workplace or not.