During the COVID-19 pandemic, an employee was fired for having long nails as this went against one of her employer’s policies. But was this dismissal legal? Can your employer set requirements for your hair, clothes, tattoos, piercings and overall personal appearance at work?
A sales consultant sued her employer, an eyewear manufacturer in Montreal, in the Small Claims Division of the Court of Québec. She argued that her employer’s policy regarding nail length was discriminatory. She wanted compensation for her dismissal in 2021.
The judge found that the policy was legal. It was put in place during the COVID-19 pandemic for health reasons. The employer also carried out her dismissal according to the law.
But could a court decide differently in other circumstances? What rules apply to an employee’s personal appearance in the workplace?
A protected right
Clothes, religious symbols, hair, beards, jewelry, tattoos, piercings, nails: as a general rule, your personal appearance is protected by the Charter of human rights and freedoms. This means that a company policy that imposes restrictions on your appearance could infringe on your rights, such as the right to personal freedom, the right to privacy, and the right to freedom of expression or freedom of religion.
However, just because these rights are important doesn’t mean they can’t be limited.
Your employer is legally allowed to set rules about your personal appearance at work. For example, they can ask you to wear a uniform or adopt a dress code. This is part of an employer’s right to manage and make decisions about their business, and you must comply with such decisions. If you refuse, your employer can take disciplinary action, up to and including firing you. But in all cases, they must carry out such actions in a way that doesn’t infringe on your rights.
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The rights and obligations of employers and employees For an employer-employee relationship to run as smoothly as possible, both must respect certain obligations set by law. To find out more, check out Éducaloi’s text on the rights and obligations in the workplace. |
How far can an employer go?
A dress code or policy that affects your appearance must be directly related to your job. The rules must be justified by:
- health, safety, hygiene or sanitation reasons
- brand image and customer relations
- the company’s mission
- the need for an employee to set an example
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Good to know. Requirements about your personal appearance may come from laws or regulations. For example, if you work in the health sector, your professional association may require you to have short nails to prevent the spread of bacteria. In the food industry, the law may require you to wear a beard cover for hygiene and sanitation reasons. In other contexts, the law may require that you wear a helmet or protective boots, for example. To find out who pays for all of this, check out Éducaloi’s text Uniforms, Meals, Coffee Breaks and Weekly Rest. |
Your employer can have a dress code or policy that affects the rights you have under the Charter of Human Rights and Freedoms. However, for the dress code or policy to be valid, they must meet stricter criteria.
For instance, your employer must show that their policy is necessary and reasonable, and that it infringes on your rights as little as possible. Courts have already recognized that employers can require that employees wear uniforms. They can also prevent employees from having beards or wearing jeans or running shoes.
Every situation is different and must be assessed on a case-by-case basis. That said, courts are stricter when employers use company image as the sole justification for their policy, when the policy touches on aspects of your appearance that are harder to change (like tattoos) or when the policy affects you outside of your work hours (like hair length).
What can you do if you disagree with your employer?
You can start by talking to your employer. You can present your point of view and ask that they adjust their policy or rules. In some cases, you will have no choice but to talk to your employer before taking further legal action.
If you’re unionized, ask your union what your options are. They could even file a grievance on your behalf.
Depending on your situation, you could also file a complaint or take legal action with the following organizations or tribunals:
- the Commission des normes, de l’équité, de la santé et de la sécurité du travail (CNESST or labour standards, pay equity and workplace health and safety board)
- the Commission des droits de la personne et des droits de la jeunesse (CDPDJ or human rights commission)
- the Commission canadienne des droits de la personne (Canadian human rights commission)
- a civil tribunal like the Court of Québec, including the Small Claims Division, or the Superior Court of Québec and the Federal Court
The organization or court that can help you will depend on the law that applies to your situation, the status of your employer (federal or provincial), the nature of your claim and the amount of compensation you ask for.