Becoming a Master of Disguise – Beware the Monster That Can Hide in Your Uniform Policy
It’s Halloween! The pumpkins are carved, and the candy is ready. Tonight, children across North America will put on their costumes and go door-to-door trick or treating. It’s a night that kids look forward to as they plan their costumes and get their bags ready to be filled with an assortment of candy and treats. But Halloween isn’t just for kids. There are plenty of people who enjoy Halloween as adults, even without the trick or treating. In fact, some have grown to enjoy Halloween even more as they get older with parties and get-togethers with friends. There are even some (me included) who love the idea of organizing a group costume.
Some group costumes see friends, teammates or work colleagues dressing in similar outfits to show they are all part of a well-known group. For example, one popular costume this year is a group of people dressing in white shirts and pants as the agents from the Progressive Insurance TV commercials. Other groups see their members wearing individual outfits, while still being together (such as my friends and I who dressed as Paprika, Dill, Garlic, Nutmeg and Sage – your new Spice Girls). Whether dressing up as a music group, or a group of characters from a book, television show or movie, there is something special about the fun you get in coordinating your costume for a celebration. That said, not all families in the neighbourhood and not all people celebrate Halloween. The reasons may vary, but they often relate to the individual or family’s religious or cultural beliefs.
Religious and cultural considerations often arise in the workplace as well. Though most often evidenced as considerations in workplace scheduling, religion/creed and cultural considerations can also come into play when an employer elects to introduce a dress code or uniform policy. One example of this is seen in the NHL’s ban on specialty jerseys which has received a great deal of press attention recently.
Why some NHL players said “Boo to you”
In June 2023, the NHL announced that it would not allow teams to wear any theme jerseys or “alter on-ice gear” for warm-ups, games, or official team practices. The decision came after seven players opted out of wearing specially designed jerseys for the league’s Hockey is for Everyone/Pride nights last season citing their religious beliefs or anti-LGBTQ+ laws in their home country, and followed Major League Baseball’s February 2023 announcement that it would eliminate Pride caps and uniform patches. The ban ended an annual practice that, in the case of Pride, the NHL had in place since it introduced its Hockey is For Everyone program in February 2017 and addressed what Commissioner Bettman stated had “become a distraction” for nights meant to “honour various groups or causes”.
Earlier this month, the NHL provided further guidance on its ban after several teams objected to the new policy. And only last week, after one player, Travis Dermott of the Arizona Coyotes, directly breached the rainbow-tape ban, has the NHL walked-back its ban on stick tape. As it stands now, the prohibition means that NHL teams will no longer be permitted to wear specialty jerseys to support various groups or commemorate certain theme nights including, but not limited to, Hockey Fights Cancer, Black History Night, Military Appreciation Night, and Pride Night, though the league clarified that the teams are to continue to design and sell such jerseys as part of their fundraising initiatives. Players will, however, be permitted to use special stick tape during warm-ups, practices and games to represent social causes, should they choose to do so.
Casting the spell
Employers are entitled to set standards and expectations for dress and appearance in the workplace and can require employees to comply. The nature of the workplace is the starting point for the introduction of any such dress code. For example, a hospital will have different requirements than a manufacturing facility or an office environment. Expectations of clients or others doing business with the employer, or the employee, may also influence or determine the nature of the attire required or expected to be worn by the company’s employees. So why choose a uniform?
Well, in the case of sports teams, it’s a matter of branding (and, if we are being honest, revenue). In the workplace, uniforms are most often seen in retail, food service, technical services and industrial work with the reasons and advantages for uniforms including:
Communicating a corporate brand or corporate image – both on and off the job;
Ensuring customers can easily identify the company’s employees;
Health and safety reasons (i.e., PPE, no jewellery, hair nets, etc.);
Promoting equality, consistency and a level playing field for all employees;
Promoting professionalism; and
Demonstrating a company’s culture.
Employers can place restrictions on their employees’ dress, attire and grooming based on the business or safety needs, so long as they do not violate the applicable human rights or health and safety legislation. In other words, any restrictions must be grounded in bona fide occupational requirements.
All ghosts and goblins welcome
As noted above, employers must ensure any uniform or dress code does not violate the applicable human rights laws. Employees must have the right to fully take part in the workplace without concerns or discrimination based on the prohibited grounds in the applicable human rights legislation, including race, creed, sex, gender identity, gender expression, country of origin and ancestry. Dress codes and uniform policies must also include processes for handling complaints and requests for accommodation.
Religious Concerns
An employer’s insistence upon strict dress and appearance requirements may adversely impact certain religious groups. Religious head coverings, in particular, have been the basis of several cases before human rights tribunals and the courts. Generally speaking, where safety concerns and considerations are not in issue, it’s difficult to justify a dress code or uniform requirement that restricts an individual from wearing clothing or accessories (i.e., jewellery or scarves), which demonstrate their religious faith. Just as an employer would have to justify the banning of such items, so must an employer also justify requiring certain attire. In other words, there must be a legitimate or bona fide reason for demanding that employees dress in a certain way.
So, what happens when the religious beliefs of one employee or a group of employees conflicts with the employer’s uniform policy? Such was the case with the NHL Pride Nights in 2022, the impetus for the current ban, where the religious beliefs of some players conflicted with the means chosen by the NHL and its teams to show their support for the LGBTQ+ community. In the NHL’s case, the league elected a total ban of all on-ice and “visible” speciality equipment. But employers need not work in similar absolutes. Rather, in such a case, the Supreme Court of Canada has held that a “reasonable accommodation” analysis should be undertaken.
Employers should consider the following questions:
Does the uniform policy relate, or have the possibility to relate, to the grounds under the human rights code (i.e., the wearing of safety helmets as PPE vs. the religious practice requiring a head covering)?
Is the uniform policy required? That is, is the uniform policy legitimately linked to the requirements of the job or the needs of the organization?
Does the uniform policy need to be applied to all employees?
What, if any, reasonable accommodation is required and available, to the point of undue hardship?
In other words, employers should consider if, assuming all safety issues have been addressed, there is another way to advance the same purpose of the uniform policy in a way that does not interfere with or discriminate against their employees’ human rights, including their religious beliefs and practices. If not, the employer moves to the second question of whether the employee seeking the accommodation can reasonably be exempted from the uniform policy. It is key to remember in such a case that the accommodation analysis is unique to the facts and circumstances of each employee (see my blog on accommodation of creed in the workplace here).
For its part, after further consideration and discussion with the players’ union, the NHL appears to have proposed a compromise of sorts. The October “clarification” memo outlined that players and teams may continue to “celebrate and support” and encouraged players to “express themselves” off the ice. The League further confirmed players have the freedom to wear “whatever they want,” including wearing specialty team jerseys, such as Pride jerseys, off the ice, so long as their doing so falls within team guidelines and dress codes. Certainly, as some NHL players and LGBTQ+ groups have stated in the press, the adoption of the ban has weakened the NHL’s Hockey for Everyone initiative. In the meantime, players are now free to voluntarily use stick tape specially designed to recognize and support various social causes, highlighting the difference between a “permissive” versus a mandatory employer policy.
How to give your policy a ghost of a chance
Dress codes, should an employer have them, start with a reasonable and legally compliant policy. Best practices suggest the following:
Much like the NHL’s memo on “Game and Practice-Related Special Initiatives,” dress codes should be written and clearly speak to what is permitted and expected when it comes to the workplace;
Dress codes and uniform policies should be designed to be inclusive of all employees, with consideration of employees’ sex, gender identity, gender expression, religion, disabilities, etc. in mind at the forefront, rather than after the fact;
Like any workplace policy, a dress code must be consistently applied and enforced;
Dress codes should be reasonable when considering the nature of the workplace and the employee’s job requirements;
The policy should include procedures for requesting accommodation, or exceptions for appropriate reasons;
Delineate any disciplinary consequences for non-compliance; and
The dress code or uniform policy should be communicated to the employees.
Creepin’ it Real
So, should the NHL maintain its complete ban on themed jerseys, or simply allow players to have the option to choose to wear the specially designed gear or not? As Shakespeare once wrote, “aye, there’s the rub.” What I can say is that it appears the NHL is engaging in the accommodation process after the fact rather than proactively addressing it before it received the bad press resulting from its June decision.
It’s important to remember that dress codes and policies are not implemented to address employee behaviour. Rather, they are implemented to reflect the nature and culture of the employer’s business or organization, or to address inappropriate dress and attire as it occurs. Ultimately, dress codes and policies are a reflection on the employer.
As with anything, for every problem there is an answer if you look in the right direction. For me, at least tonight, I’m looking to the candy bowl.
Happy Halloween from the Piccolo Heath Boo Crew!
