Changing Workplaces: Personal Appearance Rules Also Evolving

For much of the past 15 months, business and HR professionals have been focused on the various workplace issues, legal and otherwise, associated with the COVID-19 pandemic. While these issues are profound and will have lasting impacts, it is important to also recognize that work and workplaces are continuing to evolve in response to how society is changing more generally.

A case in point is a recent decision involving a successful challenge to Air Canada’s policy on tattoos and piercings. This ruling reflects how Canadian workplace standards are evolving along with social norms.

In CUPE – and – Air Canada/Air Canada Rouge, 2021 CanLII 41471, labour arbitrator William Kaplan considered policy grievances which contested the airline’s In-Flight Service Standards which prohibited cabin personnel from having visible tattoos and piercings while on duty, other than one pair of matching stud earrings.

The Union which represents relevant employees claimed that the policies were unreasonable and discriminatory, in part because the employers, Air Canada and Air Canada Rouge, had not produced any supporting evidence. In particular, the Union said that the employers were not able to demonstrate that the “no tattoos and only one pair of earrings” rules either: (1) interfered with the ability of cabin crew employees from performing their duties; or (2) negatively affected passenger perceptions of Air Canada. As a result, the Union’s challenge to the policy was on the basis that the Air Canada policies were unreasonable.

The response of the employers was that the personal appearance rules were reasonable and necessary to protect the image and business interests of Air Canada. One specific argument presented was the alleged importance of respecting the views and values of customers, whom the company essentially claimed had a right to be served by people with a particular personal appearance.

The arbitrator allowed the grievances and found for the Union. While the basic principle of protecting image was recognized, the employer failed to show that the specific policies on tattoos and piercing were necessary to advance Air Canada’s actual business interests. As a result, Mr. Kaplan ordered a number of specific amendments to the personal appearance rules. The effect was to permit certain inoffensive tattoos to be visible, with employees also being able to benefit from a more relaxed approach to piercings. Any discipline related to the challenged policies was also ordered to be removed from relevant employee files.

Takeaways for Employers

While the actual decision is brief, the effect of this ruling may well be quite profound. Air Canada is among a small number of employers in Canada who are both national in scope, and associated with a particular image for their employees. It is therefore entirely likely that the concept of “reasonable” appearance from this decision may be adopted more broadly, especially since the decision was issued by one of the country’s leading arbitrators. As is the case with any workplace rules, there is a general obligation to prove that specific rule is both reasonable and proportionate to the issue which it is intended to address. When trying to protect or advance their business image and interests, employers will need to be finely attuned to the fact that we face evolving standards relating to personal appearance and body image. This may play itself out in a number of ways, especially since a more casual approach to “business dress” has developed during the course of the pandemic.