Skip to content

Can an employer prohibit tattoos and piercings?

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.

SHARE

Archive

Search Archive


 
 

TTC’s Random Testing Decision: A Bright Light for Employers in the Haze of Marijuana Legalization

April 11, 2017

Rick Dunlop In my December 15, 2016 article, Federal Government’s Cannabis Report: What does it mean for employers?, I noted the Report’s1 suggestion that there was a lack of research to reliably determine when individuals are impaired…

Read More

Unionization in the Construction Industry: Vacation Day + Snapshot Rule = Disenfranchisement

April 4, 2017

Rick Dunlop and Michelle Black On March 14, 2014, CanMar Contracting Limited (“CanMar”) granted a day off to two of its hard working and longer serving employees so they could spend time with their respective families. That…

Read More

Sometimes a bad deal is just a bad deal: unconscionability and insurance claim settlements in Downer v Pitcher, 2017 NLCA 13

March 16, 2017

Joe Thorne and Meaghan McCaw The doctrine of unconscionability is an equitable remedy available in exceptional circumstances where a bargain between parties, be it a settlement or a release, may be set aside on the basis that…

Read More

Privilege Prevails: Privacy Commissioner protects solicitor-client communications

March 16, 2017

Jonathan Coady After more than five years, the Prince Edward Island Information and Privacy Commissioner (the “Privacy Commissioner”) has completed her review into more than sixty records withheld by a local school board on the…

Read More

The Latest in Labour Law: A Stewart McKelvey Newsletter – Nova Scotia Teachers Union & Government – a synopsis

March 7, 2017

Peter McLellan, QC & Richard Jordan Introduction On February 21, 2017 the Nova Scotia Government passed Bill 75 – the Teachers’ Professional Agreement and Classroom Improvement (2017) Act. This Bulletin will provide some background to what is, today,…

Read More

Scotia Mortgage Corporation v Furlong: The Supreme Court of Newfoundland and Labrador weighs in on the former client rule in commercial transactions

March 1, 2017

Bruce Grant, QC and Justin Hewitt In the recent decision of Scotia Mortgage Corporation v Furlong1 the Supreme Court of Newfoundland and Labrador confirmed that where a law firm acts jointly for the borrower and lender in the placement…

Read More

The Ordinary Meaning of Insurance: Client Update on the SCC’s Decision in Sabean

February 21, 2017

The Supreme Court of Canada released its decision in Sabean v Portage La Prairie Mutual Insurance Co, 2017 SCC 7 at the end of January, finally answering an insurance policy question that had divided the lower…

Read More

Client Update: Outlook for the 2017 Proxy Season

February 8, 2017

In preparing for the 2017 proxy season, you should be aware of some regulatory changes and institutional investor guidance that may impact disclosure to, and interactions with, your shareholders. This update highlights what is new…

Read More

Client Update: The Future of Planning and Development on Prince Edward Island – Recent Amendments to the Planning Act

January 23, 2017

Perlene Morrison and Hilary Newman During the fall 2016 legislative sitting, the Province of Prince Edward Island passed legislation that results in significant changes to the Planning Act. The amendments received royal assent on December 15, 2016 and…

Read More

Plaintiffs’ medical reports – disclosure obligations in Unifund Assurance Company v. Churchill, 2016 NLCA 73

January 10, 2017

Joe Thorne1 and Justin Hewitt2 In Unifund Assurance Company v Churchill,3  the Newfoundland and Labrador Court of Appeal considered the application of our rules of court and the common law as they relate to disclosure of documents produced in…

Read More

Search Archive


Scroll To Top