Men who grew a beard during the pandemic while working from home or out of work may be asked to shave it off when they re-enter the workplace. Whether your boss can force you to shave your facial hair depends on the type of work you do, your personal circumstances, and, in many instances, whether you are unionized.
Is your employer concerned about safety or appearance?
Employers have policies against facial hair for different reasons. One is for health and safety. An employer is required by law — in Ontario, the Occupational Health and Safety Act — to protect workers from harm, including from exposure to respiratory hazards like fumes, gases or biological contaminants. Some job duties require workers to use a respirator that only fits properly if the person wearing it is clean shaven. Performing these duties safely requires a clean shave.
On the other hand, some employers are simply concerned about appearance. They may have a dress code or grooming policy that prohibits beards or other styles of facial hair for the sake of its business image. A worker’s performance is no different with or without the beard.
In either case, men who experimented with facial hair during the coronavirus lockdown may have little choice but to shave if they want to keep their job.
Do you have a right to facial hair?
Facial hair can engage a worker’s human rights, in certain circumstances. Human rights law — in Ontario, the Human Rights Code — prohibits discrimination on certain listed grounds that include a person’s creed or religion, disability, sex and gender expression.
Facial hair can be protected on the basis of creed or religion. A worker whose beard represents a sincerely held religious belief, such as that held by members of the Sikh faith, is entitled to accommodation by their employer unless it would cause the employer undue hardship. A legitimate safety concern, where employees would be endangered if a bearded person is allowed to work without a properly fitted respirator, is an example of undue hardship. The factors for determining undue hardship, in addition to health and safety, depend on the circumstances of each case. It is well-established, however, that it is discriminatory for an employer to refuse to hire a person who wears a beard for religious reasons because the employer believes its clients would prefer clean-shaven employees.
The term creed in the Ontario Code may be broad enough to include protection of deeply held non-religious belief system, but there are so far no cases involving facial hair as a practice associated with one.
Facial hair can also be protected on the basis of disability. A worker with proven medical restrictions, which could possibly include a dermatological condition that is irritated by shaving, is also entitled to accommodation to the point of undue hardship on the basis of disability. An employer is not entitled to ask for a diagnosis but can expect to receive enough information from a medical practitioner to fulfill its duty to accommodate the employee’s restrictions.
Otherwise the decision to grow a particular type of facial hair has not been found to be a protected right on the basis of sex or gender expression, the Human Rights Tribunal of Ontario ruled in Browne v Sudbury Integrated Nickel Operations. In that case, the worker, who grew a moustache and goatee to support the “Movember movement,” argued that his employer’s “clean shaven policy,” which only permitted a moustache and soul patch for safety reasons relating to mask-fitting, was discriminatory. But according to the Tribunal, “wearing a beard or other facial hair is a matter of style or grooming, and is not a matter of sufficient social significance to warrant protection under human rights legislation” on the basis of sex.
It was also not protected on the basis of gender expression or gender identity. These grounds were added to the Code to address a perceived gap in the rights of transgender and gender non-conforming persons, not to protect the right of cisgender men to grow beards. The Tribunal found nothing to indicate “bearded men suffer any particular social, economic, political or historical disadvantage in Canadian or Ontario society, absent any connection between the wearing of a beard and matters of religious observance or perhaps some link to a protected ground in the Code other than sex or gender expression.”
It would remain open to transgender or gender non-conforming persons to seek accommodation for the wearing of facial hair on the basis of gender expression and gender identity, if an employer’s policy impeded grooming according to their expressed gender.
Human rights can be a complex area of law that turns on the unique aspects of each case. Workers who have questions about their workplace rights should speak to a lawyer or access community resources, like the Ontario Human Rights Legal Support Centre.
Is your workplace unionized?
Unionized workers have a greater ability to challenge employer policies than non-union workers. Their terms and conditions of employment are governed by a collective agreement that entitles the union to present grievances concerning workplace disputes to be heard by a labour arbitrator. The union generally has the power to challenge the reasonableness of employer policies, including grooming policies that restrict styles of facial hair.
In deciding whether a policy is reasonable, an arbitrator will consider if the employer has a legitimate business interest that justifies interfering with the right of employees to express themselves through their personal appearance. There are many arbitral cases dealing with dress codes and grooming standards.
In one case, Waterloo Regional Police Services Board (1999), 85 LAC (4th) 227, the arbitrator found there was no legitimate rationale for the police service to prohibit men from wearing beards on duty, except for religious or medical reasons. The employer was unable to produce any objective evidence that a beard was inconsistent with the image the employer wished to project. The arbitrator noted that it would be reasonable for the employer to regulate the appearance and maintenance of beards but was unable to justify banning them outright.
In another, Zehrs Markets Inc. (2003), 116 LAC (4th) 216, the arbitrator found that the employer’s policy that the required the grievors to shave their goatees or wear beard nets was unreasonable. There was no evidence that the goatees cause any health and safety issues, like food contamination, or that the absence of beard nets over facial hair affected the grocery store’s image with customers.
In other cases, such as Ottawa Hospital v Canadian Union of Public Employees, Local 4000, 2013 CanLII 643, arbitrators have similarly found that employer bans on facial piercings and clothing that exposed tattoos were unreasonable as they served no legitimate employer interests.
Workers should contact their union representatives if they have any questions about their employer’s grooming policies.