When CBS, the network airing the recent Grammy Awards, issued a wardrobe advisory in advance of the annual show, the mundane topic of dress codes suddenly became fashionable.
According to published reports, the CBS memo included the following cautions: “Please be sure that buttocks and female breasts are adequately covered. Thong type costumes are problematic. Please avoid exposing bare fleshy under curves of the buttocks and buttock crack. Bare sides or under curvature of the breasts is also problematic. Please avoid sheer see-through clothing that could possibly expose female breast nipples. Please be sure the genital region is adequately covered so that there is no visible ‘puffy’ bare skin exposure.”
With that stroke of a pen, CBS ensured its viewers would be scrutinizing every outfit’s cracks, crevices and creases for signs of an offending side boob. Word is that, despite Neil Patrick Harris getting lost in Katy Perry’s cleavage (he hasn’t been seen since), the night went off without a wardrobe malfunction.
In the real world, dress codes tend not to be all that exciting but they do come up for scrutiny by adjudicators now and then. Only weeks ago, an Ontario arbitrator ruled that tattoos and body piercings are just fine for nurses.
The hospital’s workplace policy required employees to cover up large, visible tattoos (and to remove excessive piercings, among other things).
The hospital’s policy was rooted in a study indicating that patients do not react favourably to tattooed and pierced female hospital workers—the hospital’s view was that the negative impressions created by employees’ personal style choices affected patients’ stress levels and health care outcomes.
The arbitrator adjudicating the nurses’ resulting grievance didn’t buy the hospital’s conclusions.
Arbitrator Slotnick stated that “anyone who has taken a stroll on a summer day knows that tattoos are no longer confined to sailors, stevedores and strippers…”
Employers may be asking, “What ever happened to our ‘management right’ to decide how our employees present themselves to the public?”
The answer to that question really depends upon the forum.
In a unionized setting, such as the Ontario hospital, the employer’s policies are subject to scrutiny on the basis of whether they are reasonable, clear, and consistently enforced.
This is the hook that allows unions to grieve a policy (including a workplace dress code) and, if it doesn’t meet that standard, it will be struck down.
In the Ontario case, the arbitrator was sympathetic to the employer’s desire to deliver the best possible health care and he accepted that patients could have a negative reaction to medical workers with tattoos or piercings.
But, the employer couldn’t provide any objective evidence of a negative impact on health care outcomes, so the policy was struck down as unreasonable.
In the non-union setting, the primary avenue for having a workplace dress code reviewed is pursuant to the applicable (provincial or federal) human rights legislation.
But, in that context, the complainant employees would have to demonstrate a nexus between their personal dress choices and a recognized ground of discrimination such as gender, religion, race, ancestry, place of origin, etc. That being the case, these decisions are far more likely to arise in the unionized context.
For now, it appears that celebrities appearing on network television award shows will have to exercise caution about exposing the “problematic” bare sides or under curvature of the breasts. And, the next time an arbitrator reviews an employer’s body art ban, she’ll perhaps observe, “tattoos are no longer confined to sailors, stevedores, strippers and nurses.”