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Jan 21, 2013

Ontario hospital’s policy banning tattoos, piercings overturned

New dress code put too many restrictions on employees’ freedom of expression without evidence it was necessary for safety or patient care
    
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An Ontario hospital’s dress code that required employees to cover up large tattoos and remove “excessive” body piercings was unreasonable, an arbitrator has ruled.

The Ottawa Hospital, a large, amalgamated hospital implemented a dress code in October 2010. The code required employees to have a professional appearance and clothing that ensured patient safety and prevented infection. However, in 2011 the hospital introduced a comprehensive new policy applying to all employees, which included an appendix that stipulated large tattoos had to be covered up and piercings had to be “minimal and conservative” and any “excessive” body piercings weren’t allowed.

The union challenged the new provisions on tattoos and piercings, arguing they unreasonably infringed on employees' right to express themselves in their appearance and they weren’t justified by any health or sanitation concerns nor any complaints by patients. It agreed with any dress code provision related to health and safety or sanitation and agreed that offensive tattoos should be concealed. However, the new provisions were just an attempt to impose the hospital’s view of a professional image on its employees, said the union.

The hospital argued it was important for employees to convey professionalism to patients in their care and the dress code ensured employees did so, in addition to ensuring the health and safety of patients.

The arbitrator agreed some patients might have a negative first impression of an employee with tattoos or piercings and a lack of complaints did not mean that some patients might not feel uneasy about hospital employees who sported them. However, the arbitrator found there was no connection between these feelings and health care outcomes. In the past 10 years, the hospital had received only two unspecified concerns about tattoos.

“Tattoos, piercings and other aspects of a health care worker’s appearance are only a tiny part of the overall picture of a patient’s experience,” said the arbitrator.

The arbitrator also noted that the hospital "could not and would not accede to the wishes of a patient who might be uncomfortable with a health care provider based on race or ethnic identity, even though some patients might harbour those types of prejudices." However, the hospital was willing to comply with other types of prejudices that had nothing to do with the quality of health care a patient received.

Tthe patient is merely receiving care from workers who reflect the diversity that one would expect in a big-city hospital. This includes employees who choose to decorate their bodies in ways that will not appeal to everybody. It is not patients who are being 'forced,' but rather employees who are being told to suppress aspects of their identity that are important to them,” said the arbitrator

The arbitrator concluded that the hospital’s dress code restricting tattoos and banning certain piercings was unreasonable, as there wasn’t any evidence that excessive tattoos and piercings on hospital employees were causing any problems. In addition, the dress code policy was vague and enforcement of it was inconsistent, leading to uncertainty among both employees and managers about what was appropriate, said the arbitrator. The new dress code policy was declared void and unenforcable.

For more information see:

Ottawa Hospital and CUPE, Local 4000 (Dress Code Policy), Re, 2013 CarswellOnt 130 (Ont. Arb. Bd.).
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