Canadian HR Reporter

CANADIAN HR REPORTER OCTOBER 2019 6 NEWS Should tattoos be banned at work? Military's recent restriction highlights human rights concerns for employers BY MARCEL VANDER WIER MEMBERS of the Canadian army are no longer able to sport tattoos deemed discriminatory or sexually explicit, following a policy update issued in August. e changes apply to both vis- ible and hidden tattoos as the Canadian Armed Forces aims to strengthen a non-discriminatory and harassment-free work en- vironment, according to army spokesperson Derek Abma. e policy update applies to tattoos displaying nudity or con- nections to criminal activity, or promoting or expressing hatred, discrimination or harassment prohibited by Canadian human rights law. Non-compliance can result in administrative and disci- plinary measures. But don't expect the army's move to catch hold within the pri- vate sector, says Peter McLellan, a partner at Stewart McKelvey law firm in Halifax. "In some ways, it's a dangerous road to go down," he says. "More employers are going to be gov- erned by how the public will react." Legal issues Freedom of expression is not a protected characteristic under human rights legislation in Can- ada, says McLellan. "It's not a human rights viola- tion for there to be an employer policy banning, really, any kind of tattoo," he says, noting that some exceptions exist for tattoos deemed religious in nature — such as a bindi. However, the reasonability of tattoo restrictions or bans depends on the workplace or sector, he says. "It would depend on the na- ture of whatever the employment situation is as to whether it would be offensive to co-workers or the public who you serve." While employers may have a neatness standard in place, the vast majority stop short of a de- fined policy, as such decisions often come down to a subjective judgment call that can be deemed discriminatory by the public, says McLellan, adding that unionized workforces may be protected more fully in this area. In some cases, anti-harassment policies may determine that spe- cific tattoos are in violation of workplace rules, he says. Different work cultures have unique expectations for workers, says Ian Milford, principal at JRoss Recruiters in Vancouver. Traditional hotels may want staff to cover up tattoos, while hipster restaurants may prefer hiring employees with visible ink, he says. "[Tattoo] appropriateness, in our experience, is more about where the person is working," says Milford, noting that most work- ers understand they may need to present themselves differently de- pending on the corporate setting. Caution is needed for employ- ers in interpreting offensive tat- toos, says Michael French, profes- sor at the University of Miami and author of a 2018 study on tattoos in the workplace. "'Offensive' is somewhat sub- jective," he says. "Suppose you had a tattoo of a Confederate flag on your arm? To you, that might be a source of southern pride, whereas, to someone else, it can be viewed as slavery and oppres- sion. People might view it very dif- ferently. I think that there's a lot of grey area." Additionally, visibility should matter, says French. "If you don't see it, is it really of- fensive? Ultimately, it's going to be a judgment call on whether cer- tain images are offensive." Revealing research Tattoos have become more main- stream and are no longer taboo in U.S. workplaces, says French, cit- ing his survey of 2,000 Americans. "What we found actually is no significant differences between those with and without tattoos — no matter how you examined tat- too prevalence," he says. "We asked about tattoos in a va- riety of ways," says French. "And no matter which way we cut it, it still showed that people with tattoos didn't seem to suffer any differential outcomes, relative to those without tattoos. at was a bit surprising to us." While acceptance of ink is growing in general, many work- ers will still refrain from exposing their body art, he says. "A lot of people who do get tat- toos are still a little concerned, and so they put them in places where they're not typically exposed in the workplace." Separate research indicates many people still hold negative stereotypes about workers with tattoos, according to Anne Wil- son, professor at Wilfrid Laurier University in Waterloo, Ont. and co-author of a 2018 report Tat will tell: Tattoos and time preferences, which surveyed 1,104 Americans. e study also revealed employ- ees with tattoos were more likely to make impulsive decisions, which may be of concern, she says. "[Still], it wouldn't be good practice to judge a person as im- pulsive solely on the basis of a tat- too," says Wilson. "Instead, if impulsivity is a con- cern for an employer, they might ask questions that directly assess a candidate's tendency to live in the moment or plan for the future, in- stead of relying only on a tattoo to reveal a person's orientation." Advice for HR Some tattoos are more of a red flag than others — offensive or discriminatory tattoos could re- flect not only impulsive judgment but other undesirable attitudes as well, says Wilson. "I'd encourage HR to con- sider any policy around tattoos thoughtfully, and to evaluate in- dividual cases with care," she says. "An overly general ban would rarely be warranted." Employers averse to employees sporting ink designs may miss out on some solid staff options, says French. "It's really tough to find quali- fied workers, especially in entry- level positions — service, manu- facturing," he says. "You're going to be handicap- ping yourself relative to other workplaces that might be a little more lenient about that. You're going to be unduly penalizing yourself if you dismiss workers out of hand if they have a tattoo." HR should refrain from judg- ing recruits by their outward ap- pearance, says Milford. "Why would you lose a great candidate… for a personal deci- sion that you may or may not agree with? That doesn't make sense to me." Just because they have a tattoo doesn't mean they ride a motorcy- cle on the weekends and sell drugs on the corner," he says. "Don't judge a book by its cov- er. Don't make a value judgment about somebody simply because they have a tattoo or an earring or a nose ring or whatever." But there is still space for per- sonal judgment in hiring, says McLellan. "I'm sure there are many em- ployment decisions based on re- ally irrelevant characteristics," he says. "e human resource issue is: Are you depriving yourself of good talent?" With ink and piercings becom- ing more socially acceptable, bans or restrictions may limit employ- ers' talent pools "for no good rea- son," says McLellan. Ignoring all non-relevant is- sues in recruitment is best prac- tice, he says. "I'd like to think that the de- sire of employers to have the best workforce would always be ahead of where the law goes, and the law will follow." "(In banning tattoos) you're going to be handicapping yourself relative to other workplaces that might be a little more lenient about that." CAREpath is the only Canadian Health Care navigation program of its kind offered in Canada. We have extensive experience in navigating Canadians through the health care system. Cancer Assistance Seniors' Care Assistance HealthCare Assist Your Wellness Partner COVERING UP In two recent cases, employer policies prohibiting tattoos were struck down due to a lack of evidence justifying the bans to override the employees' right of expression and privacy. Not enough evidence In 2013, there was an Ontario arbitration decision where a hospital required employees to cover up large tattoos and remove "excessive" body piercings. The hospital argued it was important to convey professionalism to patients and ensure their health and safety, but the arbitrator found there was no evidence that excessive tattoos and piercings were causing any problems — some patients may feel uneasy on first impression but there was no connection between such feelings and the outcome of their health care. The arbitrator also found the dress code was vague and left employees uncertain about what was appropriate. The dress code was overturned. Ottawa Hospital and CUPE, Local 4000 (Dress Code Policy), Re, 2013 CanLII 643 (Ont. Arb.). Outdated policy In 2009, the Quebec Superior Court found a daycare facility's ban on visible tattoos for employees was discriminatory. Employees with tattoos on their arms or legs at the Chicoutimi location always had to wear long-sleeve shirts or pants, even in summer. An arbitrator found that the employer was within its rights to have the ban, but the court found it was based on prejudices and stereotypes that were outdated, considering tattoos had become more common in "all levels of society." The court noted that the employer still had the right to prevent employees from showing tattoos that could be seen as inappropriate for the daycare environment. Syndicat des traveailleuses des centres de la petite enfance du Saguenay – Lac-St-Jean-FSSS-CSN c. Girard, 2009 QCCS 2581 (Que. S.C.).

• Cover