Is it discrimination to tell a man he can’t wear pigtails to work? Bosses and employees frequently clash over acceptable workplace styles and it’s resulted in court battles over hairstyles, tattoos and other contentious fashion.
The latest case involves pigtails.
Earlier this month, an Ottawa Loblaws’ employee cried discrimination after the store allegedly said he can’t wear pigtails to work.
The store manager said Adam Stone’s pigtails were a health and safety hazard because he works around food, but Stone says the hairstyle is part of his openly-gay identity, so he filed a grievance with his union.
His case in particular might sound like a slam-dunk discrimination case, at least until you examine the law.
Canada’s Human Rights Act, as well as the respective provincial and territorial codes, identify many grounds on which it’s illegal to discriminate against someone, such as race, religion, gender, marital status or disability.
Hair? Not so much.
Generally speaking, employers are allowed to institute dress codes and grooming standards at work so long as they don’t contravene an employee’s religious or cultural beliefs, like telling a Sikh man to trim his beard, for example.
Stone argues that his hairstyle is tied to his sexual orientation though, which is a protected ground.
Of course, hygiene could be a legitimate concern and human rights don’t trump all. The 1982 Supreme Court case Ontario Human Rights Commission v. Etobicoke established what’s called the Etobicoke test, which determines a “bona fide occupational requirement,” or essential condition for employment.
“A bona fide occupational qualification must be imposed honestly, in good faith, and in the sincerely held belief that it is imposed in the interests of adequate performance of the work involved with reasonable dispatch, safety and economy and not for ulterior or extraneous reasons that could defeat the Code’s purpose,” the decision reads.
Stone, however, claims his manager also said the unusual hairstyle would offend some of the store’s customers. So while customer hygiene could be a bona fide occupational requirement, sparing the feelings of conservative customers would not.
Loblaws’ spokesman Kevin Groh said the store is investigating.
"While there are certainly underlying food safety and hygiene considerations to be made, if the conversation occurred as described, it falls short of our commitment to fair, respectful, inclusive treatment of our many LGBT colleagues," he told CBC News.
This is similar to a 2011 case where a Winnipeg waitress was fired for shaving her head in support of a cancer-stricken relative. She brought a complaint before the Manitoba Human Rights Commission, but it dismissed her complaint.
If she’d had cancer herself, that certainly would’ve counted as discrimination. But she shaved her head voluntarily, not out of any sort of religious or cultural conviction, so her baldness was not any kind of protected grounds under human rights laws.