November is right around the corner. November is, among others, American Diabetes Month and Lung Cancer Awareness Month. However, nowadays, November is also associated with the mustache, otherwise known as Movember. Movember is an annual month-long event involving the growing of mustaches to raise awareness for men’s health issues. Movember aims to increase early cancer detection, diagnosis and effective treatments, and ultimately reduce the number of preventable deaths. It is certainly worth noting that Canada leads all other countries in funds raised through this initiative.
There is, however, one issue from an employment perspective that may arise in Movember. Many companies have policies governing employees’ dress code. Include in this might be policies and regulations regarding different facets of one’s physical appearance, for example, tattoos, piercings, and, of particular relevance to those participating in Movember, facial hair.
What, then, is the legal status of such a policy? The short answer is that an employer is entitled to regulate its employees’ personal appearance, provided that the necessity of such a policy, be it for safety reasons, the business’ image, etc., be concretely demonstrated. Essentially, case law in this area involves the conflict between an employer’s right to manage his or her business, and an employee’s rights to privacy, freedom of expression, etc.
In Les employés du transport local et industries diverses, local 931 c. United Parcel Service Canada, 2003 CanLII 2812, a UPS employee contested the company’s decision to not promote him to a new position, citing his refusal to shave his beard as the reason. The union’s argument was that the company’s “Looking Good” policy, which required that mustaches be neatly trimmed and not extend past the mouth and prohibited any hair below the lip (i.e. beards and goatees), violated his right to privacy and freedom of expression and should thus be declared illegal and discriminatory. The arbitrator Claude H. Foisy ultimately held that the policy did indeed violate section 7 of the Canadian Charter of Rights and Freedoms, which guarantees the right to life, liberty and security of the person, as well as articles 3 and 35 of the Civil Code of Quebec, which guarantee personality rights and the right to one’s reputation and privacy, respectively. Arbitrator Foisy noted UPS’ failure to put forth any evidence linking employee appearance to the company’s sales and/or employees’ efficiency.
We note that other cases have been similarly decided. When there have been legitimate safety concerns, our tribunals have tended to afford employers more leeway in implementing appearance-based policies.
We wish all our readers, in whatever shape or form your support may take, a very happy Movember.
In collaboration with Michelle Felsky, student at Norton Rose Canada LLP