Hospital workers win right to display tattoos, piercings – but the battle isn’t over

I confess it's taken me a while to get used to seeing people regularly with their arms completely covered in tattoos or elaborate murals on their backs.

I'm from a generation who saw tattoos mostly on old soldiers, bikers or ex-cons. The idea of inking your entire body to look like Ray Bradbury's The Illustrated Man as a way of expressing who you are is still hard for me to fathom. Because I'm old enough to know that whoever you are in your twenties, you're not going to be that person in your fifties.

And that body art on your wrinkly old skin, well, you're stuck with it unless you've got a few grand to pay for laser removal.

But hey, live and let live, I say. I'm not shocked anymore when some young woman serving me at a store has a lovely flower arrangement climbing out of her cleavage. I just smile to myself and know that it's gonna look a little wilted in about 20 years.

So I applaud a decision by an Ontario labour arbitrator to strike down attempts by the Ottawa Hospital to impose a dress code that includes covering up tattoos and removal of body piercings.

The National Post reports arbitrator Lorne Slotnick agreed some older patients might be somewhat put off if the nurse caring for them sported a tattoo or nose ring but concluded there's no evidence it would adversely affect their health.

"Simply put, the union’s argument is that these requirements, among other aspects of the dress code, are an unreasonable infringement on employees’ rights to express themselves in their appearance, unjustified by any health or sanitation concerns, or any complaints by patients," Slotnick wrote in his decision, summing up the two sides' arguments.

"The hospital regards the issue as a matter of professionalism, arguing that at least some patients are put off by health care providers sporting tattoos and piercings, and that if the hospital can save any patient some anxiety by requiring employees to cover tattoos and remove piercings, that is a small sacrifice for the employee."

The hospital argued at the hearing that the rules were intended to help boost patient confidence in their caregivers, the Post noted, and that “freedom of expression for employees must take a back seat in a health-care setting when people are fighting for their lives.”

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But while surveys in the United States and Europe found hospital patients didn't care to see tattoos or piercings, there was no data to suggest their health was adversely affected.

"It is hard not to conclude that the hospital has attempted to fix a problem that does not exist," Slotnick concluded. "The hospital has not shown that there is any legitimate reason for the employer to control the exposure of tattoos and piercings to the extent the dress code does.

"Where no harm can be shown to either patients or employees or the hospital itself, the restrictions are an infringement of the employees’ right to present themselves as they see fit."

The case sprang from a grievance filed by the Canadian Union of Public Employees. Union lawyer Peter Engelmann told the Post he's not aware of any other hospital in Canada that has imposed similar rules.

As Slotnick observed, there are precedents for this sort of thing. Some 40 years ago, Toronto-area firefighters won a grievance over a ban on sideburns.

"As sideburns were controversial in 1972, so tattoos and piercings are now," he said. “[But] anyone who has taken a stroll on a summer day knows that tattoos are no longer confined to sailors, stevedores and strippers.”

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Slotnick's right. Long hair in the 1960s was considered a sign you weren't completely trustworthy or professionally serious. It didn't last, of course. When I covered courts in Calgary back in the early 1980s, one of the most effective lawyers working then had long red hair he wore in a ponytail that went halfway down his back.

But before you rush off to your favourite tattoo artist to finish your sleeves, you should know that this ruling may not help you in your workplace.

Lawyer David Doorey, a professor at York University's School of Human Resource Management, writes in his blog that the ruling hinges on the union grieving the hospital's new rules as a violation of their collective agreement.

The arbitrator relied on a test of reasonableness taken from a 1965 decision called KVP Co. Ltd.

"Note that in a non-union workplace, there is no requirement for an employer to meet the KVP test," Doorey observed. "That means non-union employers can usually impose whatever dress or appearance code they wish, subject to any human rights issues that could arise. Unionized workers clearly have a greater right to personal expression at work."

According to the B.C. Ministry of Jobs, Tourism and Skills Training, an employer "can require employees to remove jewellery, cover tattoos and wear appropriate clothing."

Take supposedly hip Starbucks, for instance. Staff at the giant coffee chain are required to remove all body piercings except for modest earrings and cover up their tattoos. Workers have been fired for not complying.

A post on an unofficial Starbucks staff blog in 2011 underlined the controversy over the company's policy.

"Despite what many think, we really do not live in a world where everyone wants to see tattoos," wrote blogger Melody, who doesn't work at Starbucks.

"I have occasionally thought that an easy way to make a small change to the Starbucks tattoo policy would be to have a ‘dollar bill’ test. If the exposed area of the tattoo is no larger than a dollar bill, it is fine."