In an article titled Tatoos, Piercings and Scarification, Photos the writer notes that for some monks in Thailand tattoos are believed to bestow the monks with ancient Khmer prayers and the spiritually protective powers of animal images.
Young people in modern North American societies pierce just about anything. For those involved in the practice, virtually no part of the body is exempt as ears, nose, tongue, lips, navel, genitals and elsewhere are often pierced. According to one source evidence of males with pierced ears dates back at least to the 9th century B.C. In a university of Pennsylvania article the writer provides anthropological evidence that multiple ear piercings on women in Iran date back to 2900 B.C. The same article shows before drawing a stark comparison to multiple ear piercings in suburban Philadelphia in 1998.
The reasons for piercing a body part may shift as a function of time and culture. The cultural significance of one or more piercing(s) vary. For instance
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”.
Human rights legislation a=right across Canada each prohibit discrimination in employment on the basis of grounds enumerated in each piece of provincial or federal legislation. 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.
Virtually every piece of human rights legislation in Canada together with he 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 employers 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 in a protected group. Human rights legislation is typically infringed so long as a single element in the discussion 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 way. Employer 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 fad, and body art as part of cultural expression on an candidate for employment? The truth is that an employer cannot readily make that determination without particularized knowledge of the individual candidate. However, it is perhaps not wise for an employer to start asking questions about a candidate’s cultural background when faced with a person with body art, inclusive of piercings. Does an employer open 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 gets the answers and then decides not to hire the person?