Skimpy Outfits, Piercings and Tattoos: How far can employers go to protect their image?

Employers often go to great lengths to create a certain “look” or image for their enterprise. As part of creating that image employers often seek to impose certain standards on the appearance of their employees. Dress codes, for example, are common, but what are the legal limits to an employer’s authority to require an employee to dress a certain way? Can an employer portray a “young and sexy image” by requiring employees to wear revealing clothing? Can employers go further, hiring only employees who fit a particular standard of attractiveness? Our panel of experts will address these controversial issues and others, such as:

• Rules Governing Employee Appearance: When are rules about appearance or dress reasonable? How should the rules balance the rights of employees against the legitimate business interests of employers? Can an employer ever justify a rule regarding appearance if the rule will affect the employee’s appearance off duty? Do the answers to these questions vary depending on whether the workplace is unionized or not? Should it be easier to justify rules regarding dress and appearance for employees who work with children or other vulnerable groups?
• Dress Codes as Bona Fide Occupational Requirements: When will a certain manner of dress be a bona fide occupational requirement as defined by human rights legislation? What kind of health and safety concerns justify dress codes? Infection control? Food safety? Chemical hazards?
• Religion, Dress and Appearance: When will a dress code discriminate against an employee because of his or her religious beliefs? Must the employee prove to the employer that certain clothing is required by her religion, or is it sufficient for the employee to assert that she believes she must dress a certain way? If an employee must wear a certain garment (e.g. a hijab) because of her religious beliefs, can the employer insist on a certain style that fits with the employer’s image? Is there a difference between dress mandated by religion and dress that is a cultural norm? Does such a distinction affect the employer’s duty to accommodate? Is it discriminatory to announce to other employees that a certain employee is exempted from the dress code because of his or her religion? How do adjudicators determine the appropriate balance when religiously-required dress or appearance threatens health or safety in the workplace?
• Tattoos: Can an employer impose a ban on visible tattoos? Does the answer depend on whether the workplace is unionized? Is an employer justified in banning the display of only certain tattoos it considers offensive?
• Appearance Rules Amounting to Discrimination: Is it discriminatory for an employer to make employment decisions (i.e. hiring, firing) based on aspects of personal appearance that may not be protected by human rights legislation, such as weight, height or attractiveness? Would employer decisions based on notions of attractiveness offend prohibitions against discrimination based on sex or age? In what circumstances would employer decisions based on weight be discriminatory? Can a certain appearance be a bona fide occupational requirement? For example, can a nutrition store refuse to hire individuals management considers to be overweight or, alternatively, frail?
• Evidence at Arbitration: How can an employer show a serious threat to business interests? Is expert evidence required? How do social attitudes affect this determination? How will arbitrators approach public-opinion evidence about social attitudes towards dress or appearance?
• Discipline: Must employees follow the “work now, grieve later” rule when employers ask them to alter their appearances (e.g. remove false nails, shave a beard, remove piercings, etc.)? Can employees refuse to follow a certain rule regarding appearance on the basis that following the rule will cause them mental stress or psychological discomfort? Will failure to regularly and uniformly enforce the rules give employees a “false sense of security” and make discipline inappropriate? What sort of warnings about an employee’s appearance are appropriate before an employee is disciplined?