Photo: Ryan J. Lane/iStock Photo: Ryan J. Lane/iStock

There was a time when tattoos were the domain of bikers and outlaws. Not anymore. Nowadays, body ink and piercings are ubiquitous amongst even the most buttoned-down professionals. While getting inked doesn’t have the negative stigma it once did, that doesn’t mean all workplaces are eager to embrace employee body art.

While a nose piercing or full sleeve of tattoos might be de rigueur amongst creative agency directors and baristas, some employers frown on any public display of tattoos for fear of sending the wrong brand message or even intimidating their clients. Some will go as far as to require workers to cover their body art, especially if they occupy a client-facing position. But does doing so constitute an infringement of the human or employment rights of the individual to have and showcase that art? The short answer is yes–sort of.

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In the case of Ottawa Hospital v CUPE Local 4000, hospital administrators attempted to introduce a dress code banning large tattoos and unusual (i.e. non-ear) piercings because the body art was upsetting patients and even affecting their health outcomes. But in 2013 an arbitrator ruled that there was no evidence to support the hospital’s claims, before overturning the dress code altogether.

In 2009, a Quebec judge found that a daycare’s policy that prohibited visible tattoos was inappropriate. In that case the employer was also forced to rethink their body art ban.

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That’s not to argue employers don’t have a say on the matter. Employers can require employees to cover tattoos so long as it doesn’t infringe on their freedom of expression, race or religion, or cause any discomfort. In the latter case, individuals have successfully argued that their employer’s ban on tattoos was unfair because they worked in high-temperature environments and needed to wear short sleeves to stay cool.

Employers can also set dress codes and limit the display of tattoos if they feel those images contain racist or violent messaging, for example. But the policy must be applied consistently, be very specific and must have limited application. Policies banning all body art will not stand up in court.

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So, what kind of body art could an employer request an employee to cover or remove? Think of messaging that is racist or clearly sexist to the extent that it could be seen as violating human rights or causing reputation harm to the employer. A racist slur or swastika tattoo would be just two examples, as well as anything that is worn in an objectively offensive manner that could cause a reputational risk or customer service issues for the company.

As far as prohibiting the hire of any potential employee who has visible body art, you do so at your own peril. Courts tend to frown on any such declaration. Although Canadian human rights law does not cover body art specifically, it would not be impossible to make a case for discrimination.

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There’s another major problem with this sort of policy: it unnecessarily limits the pool of talent from which you can draw. At a time when particular skill sets are in high demand, it makes little or no sense to judge a proverbial book by its cover and pass over a perfectly viable job candidate simply because they have a nose ring or a forearm tattoo. Introducing this sort of a ban is a surefire way to upset the morale and engagement of existing employees, whether they be inked and pierced or not.

My advice: give up on the idea of banning body art and instead develop a clear and reasonable dress code policy for your workplace. Then be prepared to enforce it fairly and evenly.

Laura Williams is an employment lawyer and founder of Williams HR Law in Markham, Ont. She has more than 15 years experience in providing proactive solutions to employers aimed at reducing workplace exposures to liability and costs that result from ineffective and non-compliant workplace practices.

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Do any of your employees have piercings or body art? How does your dress code account for those cases? Let us know using the comments section below.

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