RELIEF AVAILABLE UNDER HUMAN RIGHTS CODE FOR DISCRIMINATION ON THE BASIS OF BODY ART

In June 2014 the Toronto Star published an article in which the issue of discrimination against persons with body art was explored. The article presented the opinion of at least one employment lawyer who carte blanche seemed to dismiss the possibility that persons who are the subject of employment discrimination because of their body art could never get relief under existing laws that prohibit discrimination or various protected and enumerated grounds covered in Human Rights legislations.

On Wednesday October 8, 2014 Metro News published a similar article under deadline: End Job Discrimination for those with tattoos, piercings: Petition. In the Metro News Article Kendra Behringer appears to be on a quest to end employment discrimination against persons with tattoos, piercings and hair colour.  In response to Ms Berhinger’s call, Danny Kastner, a labour and employment lawyer is reported as opining that these types “aesthetic characteristics aren’t covered by any human rights legislation. in Canada does not expect that they will be in the near future”.  The impression that is left is that employment discrimination based on body art can never offend any protected ground of any human rights legislation anywhere in Canada.

At first blush Kastner opinion seems sound. It is true that current human rights legislation across Canada do not enumerate “body art” as a specific prohibited ground of discrimination in employment. From this fact alone, one should not necessarily conclude that employment discrimination on the basis of “body art” can never amount to discrimination on the basis of a ground protected by human rights legislation in Canada Why?  Not all body piercings are the same. Some piercings are culturally driven. Not all body art is the same. Some are religiously based, or at least part of a belief system tied to creed.  There are plenty of situations and circumstance in which employment discrimination can in effect be a contravention of existing human rights legislation. This article challenges Kastner’s narrow opinion, labelling it intellectual laziness. This article examines when, if ever, can employment discrimination because of a person’s body art body art, amount to a breach of human rights legislation. On a broader basis, the article explores some workplace related issues that arise from body art.

 

What is body art?

 

Believe it or not finding a Canadian legislative definition of body art in the employment context is like trying to find a needle in a hay stack. Ontario’s Employment Standards Act contains no definition of the term. The Ontario Human Rights Code contains no definition of the term. The Employment Equity Act contains no definition of the term. The Canadian Human Rights Act, contains no definition of the term. Ontario’s Occupational Health and safety Act contain no definition of the term. The Ontario Labour Relations Act presents no definition of the term. And the Ontario Workplace Safety and Insurance Act fails to define the term.

Despite the paucity of a legislative definition in the context of employment and human resources matters, the term body art has nevertheless been defined in other spheres. For starters, body art is not a term with a single definition..

Although the 1988 edition of the New Lexicon Webster;s dictionary contains no definition of the term body art, there seems to be competing definitional categories. One category defines body art as a medium through which artists or other expression is communicated. In Wikipedia definition, body art is

:         “a sub-category of performance art in which artists use their own body to make their own particular statement(s), presumably political or otherwise.”

Dictionary.com provides a somewhat similar definition of the term. Its definition reads:

“an artistic practice or style of the 1960s or 1970s developing from conceptual art and performance art and utilizing the artist body as both the subject and object in such experimentation as decoration, wax casts and even mutilations.”

Definitions that define body art in terms of expression focus not so much on the activity in question, but the content of the so called art. In this category, expression seems to be the key issue. Compare definitions that focus on expressive content to those that simply categorize activities caught by the meaning of the term. The Oxford dictionary defines body art this way:

“The practice of decorating the body by means of tattooing, piercing, plastic surgery, etc…. An artistic movement originating in the 1970s in which physical presence of the artist (or of a model) is regarded as an integral part of the work.

One medical dictionary defines body art as:

“the practice of adorning the body with piercings, tattoos, branding, or scarification.

Another definitional strand approaches the issue of body art from a public health perspective. By far this third approach appears to be the most prevent, at least from a public policy perspective. Health Canada’s working definition is:

“the act of permanently depositing pigment into skin to a depth of 1-2 millimetres to create a design.”

In the public health realm there are some definitions that implicitly link the activity with the reason and or purpose of the activity. Consider how the province of Nova Scotia has approached the subject. Maureen MacDonald, Nova Scotia Minister of Health and Wellness introduced the Nova Scotia Safe Body Art Act on November 23, 2011.  The Act received it third reading on December 12, 2011. While the Act does not actually define body art, portions of section 2 read as follows:

In this Act,

a).       Administrator means a public health inspector appointed as the administrator of this Act;

(b)      “body art facility” means any premises at which body art services are offered, or carried out in exchange for compensation;

  1. c) body art services mean the act of permanently or semi-permanently altering the body for non-medical reasons dor the purpose of cultural, artistic, or self expression reason by,
  2. branding,
  3. piercing,

iii.       tattooing;

  1. any other act prescribed by regulations.

In the public health world, municipal employees are often the front- line practitioners who inspect body art facilities for the purpose of compliance with public health related regulation. The municipality of Cambridge Public Health Department defines body art as:

“body art shall mean the practice of physical adornment, alteration or modification by means including, but not limited to piercing, tattooing,  branding, braiding, implantation, beading or scarification, also known as scaring.

It appears that body art has no singular meaning. In contemporary society body art appears to have competing definition, few of which emerge from, and are specific to an employment labour relations context. Regardless of definitional differences, there are some common elements. Body art is a method though which expression is voiced. Body art involved a variety of activities, and it has a health and safety dimension.

In the context of employment-related issues, the term body art presents a challenge. Why? In contemporary society it is seen as “art”.  Some see it as bad “art”.  Others see the practice as cultish, and the religious majority view some of the practices as satanic. The truth though is that for close to four thousand years humans have painted and decorated their bodies.  One writer notes that the art of tattooing dates back to 2000 B.C. as a tribal custom in many different parts of the world including Africa and North America.

Body art is an age old practice that has been used at various points in history to indicate status, religious affiliations, desired protection from evil and disease[1]. Some assert that with the passage of time body art became a practice virtually restricted to sailor, bikers and other undesirables.[2] Today, body art is gaining in popularity.  Celebrities in all shapes and sizes often display their body art. Popular sports figures such as Dennis Rodman, LeBron James and others are far from bashful when they boast their body art.

It seems fairly clear then that body art can and often does have cultural, or religious dimensions.  Moreover, the content of a tattoo constitute “expression”. Every piece of human rights legislation in Canada each prohibit discrimination in employment on the basis of culture, ethnicity, religious belief and creed.. Public sector employers have the added constraint of the provisions of s. 2, and s. 15(1) of the Charter of Rights and Freedoms which deal with freedom of expression and discrimination on the basis of ground enumerated and those that are analogous, according to the Supreme Court of Canada.

 

Virtually every piece of human rights legislation in Canada together with the Charter of Rights and Freedom prohibit discrimination in employment based on culture, religious beliefs, creed, etc. Given that body art has cultural and religious connections, it is possible for employment discrimination on the basis of the content of a tattoo, or piercings, etc. to offend the provisions of human rights legislations?

 

An employer runs afoul of human rights legislation when it hiring or promotion decision on the basis of body art offends the provisions of the human rights legislation.  It becomes illegal discrimination when the impact of the employer’s decision is discrimination on the basis of culture or religion, or associations with persons in the protected group.  In other words, where the effect of an employer’s decision to discriminate on the basis of body art is also discrimination on the basis of culture, religion, cultural expression or religious expression the provisions of the human rights legislation and the Charter of Rights and Freedoms for public sector employers have been infringed.

 

It is now settled law that there is no need to show a discriminatory intent in order for human rights legislation to be infringed. There is also no need for an employer’s discriminatory decision to discriminate against everyone within a protected group.  Human rights legislation is typically infringed so long as a single element in the discussion, or decision has a desperate imp[act on a protected group.

 

Employers need therefore to approach the question of discriminating against a person with body art in a cautious manner.  Employers do not have the right to identify or otherwise categorize a person into or outside a particular group. Self identification is the rule, the norm. So, if a person identifies herself or himself into a protected group, an employer cannot dispute that self-identification choice.

 

How does an employer distinguish between body art as cultish, and body art as part of cultural, or religious expression of a candidate for employment? The truth is that an employer cannot readily make that determination without particularized knowledge of the individual candidate’s background. However, it is perhaps not wise for an employer in the course of an employment interview to start asking questions about a candidate’s cultural background when faced with a person with body art, inclusive of piercings.   It seems likely that an employer who engages in such conduct opens itself up to  possible human rights litigation if during the interview and selection process it probes a candidate cultural background to distinguish between cult and culture, fad and religious beliefs, creed and fashion, artistic expression or some other form of protect speech.

 

Supposing, for a moment, an employer refuses to hire a person with full body tattoo because the employer believes that the tattoo would offend its customers. In other words, the employer refuses to hire a person based on what at first impression appears to be legitimate business reasons.  For the purposes of this article, let’s assume that the employer’s business reasons are not a bona fide occupational requirement because the person has all of the qualifications required for the job and by all indications is competent. Supposing now, the candidate rejected for the job files a human rights complaint alleging discrimination on the basis of religious discrimination because the content of the tattoo is actually verses from the bible.  What might the outcome of such a case be. The fact that the employer was not aware of the content of the expression may provide little avenue for relief.

 

Take another example, supposing an employer discriminates against a person in employment on the basis of a body piercing only later in the context of a human rights complaint to find out that the piercing is part of a cultural tradition. What might be the likely outcome of such a case?

 

Employers reading this article are now likely to be asking themselves whether they should start investigating the content of the tattoo in the hiring process. This is a thorny issue, given every prospective employees right to privacy. However, an employer may have a legitimate need to determine whether the expression contained on a prospective employees tattoo is offensive. For instance, what should an employer do if the content of the tattoo reads: “Kill all niggers”, or Hitler made the right decision with the Jews, or women should be at home making babies, not in the workplace? What an employer should do may vary in the circumstances of each specific case.

 

The truth is that tattoos and body piercings have little to do with a person’s ability to do a job. Many brilliant techies sport very obvious tattoos. The point of this article is that one can conceptualize a myriad of examples in which discrimination against a person so called sporting body art can come within the meaning of existing legislation and end up running the employer afoul of human rights provisions.

 

Public sector employers have the added consideration of the provisions of the Charter of Rights and freedoms which specifically guarantees freedom of expression within constitutional limits. Unless an employer thinks carefully, the about these issues, constitutional litigation may follow, simply because the content of the tattoo and the activity itself may be considered expression. So, even if a person has no relief under human rights legislation s/he may assert relief under the Charter of Rights and Freedoms, or the Canadian Bill of Rights, a piece of legislation that remains in effect.

[1] . Student ???

[2]