Tattoos – The Final Frontier of Dress Codes? by John Burchill
Tattoos – The Final Frontier of Dress Codes?
Almost a decade ago I wrote an article on tattoos and police dress regulations that appeared in the Manitoba Law Journal.  At the time I had surmised the new Manitoba Police Services Act,  which had come into force on June 2, 2012, would establish regulations for the effective management of all police services in Manitoba that were consistent with community needs, values and expectations. One of the things I mused might be included in these new regulations were dress and deportment standards, including the display of tattoos.
To date no standard regulations have been promulgated, however the Police Services Act is currently under review and an implementation team has been created to research and consult with a variety of stakeholders and subject matter experts on a number of areas, including the creation of policing standards. 
A 2016 Harris Poll in the U.S. found that three in 10 Americans had tattoos and acceptance of them was growing, but not universal. From 32 per cent to 39 per cent of those surveyed said they’d be comfortable with police officers, judges, doctors and presidential candidates having visible tattoos. Approval was higher among the millennial generation. 
As such I take a look at where we are today and whether the landscape has changed regarding tattoos and dress codes in general.
As I had earlier noted, police dress regulations play a vital role in enhancing both the public image of the police and the internal morale or esprit de corps of its members. Police officers are issued a specific uniform and are expected to conform to a significant list of physical appearance standards. Traditionally the showing of tattoos was not among this list. However, a number of police and public services agencies had started to examine them as part of their dress codes due to potential negative image they might portray that is incompatible with the legitimate business interests of the Service.
While tattoos reflect one of the earliest known forms of communication, identifying the wearer with a certain group while distinguishing him from others, they could also symbolize or reflect the persons status and place within society. It might simply be seen as “body art” by some; to others it is a means by which they express their cultural or religious identity, their sense of individuality or their personal thoughts, opinions and beliefs.
However, when you are wearing the uniform of your employer, you also project their image. Specifically, because of the nature of policing as a profession, dress regulations are required to promote the image of a disciplined, identifiable and impartial police force that is a symbol of neutral government authority, free from expressions of personal religion, bent or bias.
The Vancouver Police, for example, one of the few departments in Canada to make its regulations and procedures manual available to the public, limits the display of visible tattoos and prohibits the display of unauthorized tattoos as follows:
· Any tattoo depicting violence, sexually explicit imagery, vulgar content including words, phrases,
· symbols, profane language or implied meaning, offensive content, or that which would undermine
· any person’s dignity;
· Any tattoo that discredits the member or diminishes the public’s trust in the VPD;
· Any tattoo visible on the face, front of the neck, or scalp, unless it is directly related to a medical
· condition (e.g., tattoo of an eyebrow after hair loss); or
· Any non-discreet tattoo on the side of the neck.
Any member wishing to obtain a tattoo is to ensure that it would not be considered an unauthorized tattoo as noted above. Members of the department with a tattoo are prohibited form displaying unauthorized tattoos while on duty or representing the department in any official capacity. Unauthorized tattoos are required to be covered with a department approved uniform. 
Where they exist, there are very few challenges to police dress codes involving tattoos. However there has been some recent arbitration decisions involving the private sector in Canada that are worth noting.
II. Dress Codes Must Evolve With Our Times
On July 2, 2021, a funeral home chain’s ban on employees having visible tattoos or piercings was found to be a relic of another era and needed to change with the times, Quebec labour arbitrator Amal Garzouzi ruled. 
Collins Clarke funeral homes, a Montreal-area division of the Dignity Memorial network, was found to in violation of its workers’ rights and offered no proof tattoos upset grieving clients. “The actions taken by the employer appear to be based on concerns from another era,” wrote Garzouzi. “The rules on dress and body image established and in force for more than thirty years must evolve with our times and adapt to the current context while respecting the rights and freedoms of employees.”
The case centred around two grievances. One involved a female employee with tattoos on both hands that management insisted be covered, as stipulated by company rules. The workers argued their rights to free expression and privacy under the Quebec Charter of Rights were violated by the policy.
The company said they were justified breaching those rights to preserve the sober and solemn atmosphere it tries to maintain for clients, citing a similar 2016 arbitration involving police, which suggested tattoos were disturbing for a certain segment of society. 
However Garzouzi said Collins Clarke offered no opinion polls or testimony from clients or others to back up its contention that tattoos were off-putting for some people. And, she noted, no client had ever lodged a complaint against either employee. “Tattoos and body piercings are common forms of expression in all walks of life,” Garzouzi said. “It takes direct and clear evidence to convince the tribunal that this way of expressing oneself generates apprehension or unease among its clients.”
III. Visible but Discreet Tattoos Allowed
On May 13, 2021, arbitrator William Kaplan said Air Canada’s blanket ban on visible tattoos and piercings was unnecessary “to advance their business interests.” He said the company had to allow cabin crew to display discreet permanent tattoos and small piercings. 
The union said that forcing workers to cover their discreet tattoos and remove their additional piercings caused them stress and anxiety. Kaplan found much of Air Canada’s policy was “unreasonable and discriminatory.”
In order to ensure compliance with the Collective Agreement, and the Canadian Human Rights Act Kaplan ordered the Company to amend their tattoo and piercings policies to permit henna tattoos (a temporary form of body art generally using a paste from certain plants), as long as they are worn for any religious, cultural or celebratory reason; and visible but “discreet” tattoos anywhere except on most of the head or neck, so long as they are not offensive or refer to “nudity, hatred, violence, drugs, alcohol, discrimination or harassment.”
In his ruling, Kaplan disagreed with Air Canada’s assertion that their policies were “reasonable and not discriminatory” and that they were necessary to both protect the companies’ image as well as ensure customers’ views and values were being respected. “I agree that the Companies’ image is important to their brand and that customer’ views and values are important. Indeed, other airlines have policies regarding tattoos and piercings,” Kaplan wrote. “However, it is not clear that the Companies’ tattoo and piercings policies, in their present form, are necessary to advance their business interests.”
IV. No Visible Head, Face & Neck Tattoos
In a recent U.S. public sector decision, the Massachusetts Civil Service Commission upheld a no-visible tattoo policy in a challenge brought by an applicant to the Brockton Fire Department on March 11, 2021. 
Corey Matchem, who was bypassed by the Brockton Fire Department (BFD) over his non-compliance with the department’s Tattoo, Body Piercing and Mutilation Policy for New Hires, filed an appeal with the civil service commission alleging that the policy is discriminatory on its face, violates his rights to freedom of speech, and violates equal protection because it only applies to new hires, not existing firefighters.
The BFD Tattoo Policy prohibited two categories of tattoos, brands and body art: (1) those which depict offensive subjects, such as racial, sexist or other similar hatred or intolerance, are prohibited, whether visible or not while on duty; and (2) tattoos, brands and body art (tongue splitting, disfiguring ears, nose and lips) on the face, head, neck or hands are prohibited if they are “visible to public view while wearing any department issued uniform.”
Matchem has multiple tattoos, none of which fall into the offensive category that would be strictly prohibited. He has visible tattoos on his face, neck and hands. He also has excessive ear stretching. Chief Williams explained to the Commission that the BFD Tattoo Policy prohibited tattoos on the face, neck and hands and that covering those markings would not be acceptable because, in part, that would raise safety issues.
At the hearing the BFD produced examples of similar tattoo policies adopted by the Brockton Police Department, the Lexington Fire Department, the Stoneham Fire Department; and the Massachusetts Department of State Police; Tattoo Policies of the United States Marine Corp, Navy, Army, Coast Guard and Air Force.
The Commission was persuaded that the BFD Tattoo Policy was rationally related to legitimate purposes of maintaining order and a uniform and professional image of the BFD that the public will trust and respect, and preserving public confidence in the ability of the BFD to maintain public safety and attend to particularly vulnerable and sensitive persons.
Although tattoos present unique issues and are not completely immune from constitutional scrutiny, as a general rule, the Commission held the authority of law enforcement agencies to appropriately regulate tattoos and body art that its members (or applicants) chose to embed and display on their bodies was a well-established limitation on freedom of speech by public employees.
Although tattoos can involve a very wide range of symbolic images that the bearer may intend to convey one idea, or no idea, but which another person might misinterpret, the Commission held that a law enforcement officer in uniform and on duty does not speak as a “citizen”. In fact, stated the Commission, “because a law enforcement officer on-duty and in uniform is a symbol of the state police power, restrictions that might be improper for private employers to impose on their employees are justified, indeed even compelled because of the public image that a law enforcement officer projects”. Further quoting from Daniels v. City of Arlington,
[a] police officer’s uniform is not a forum for fostering public discourse or expressing one’s personal beliefs . . . The content of [the officer’s] speech – conveyance of his religious beliefs – is intensely personal in nature. Its form melds with the authority symbolized by the police uniform, running the risk that the city may appear to endorse [the officer’s] religious message. 
Nevertheless there was no actual testimony to explain the matter of “public concern” on which Matchem’s tattoos were meant to express an opinion. Indeed, by his own admission, many of the tattoos represented his private “self-expression” such as his favorite children’s book or his interest in Star Wars films. For example, on his knuckles (right to left hand) he had “INVA-SION” and “Itsa-trap”, both popular phrases/sayings from the Star Wars franchise.
As such the Commission found that the BFD had met it burden to show a legitimate governmental interest was served by the Tattoo Policy, which includes, in particular, the interest in maintaining public trust while serving a vulnerable population, the importance of maintaining good order and discipline, and the public safety issues that preclude allowing a firefighter to cover his tattoos while on-duty and wearing his uniform.
V. No Borg’s Allowed
Although not a tattoo case, Justice Lanchbery of the Manitoba Court of Queens Bench, recently held that government issued license plates are similarly not forums for fostering public discourse on any and all topics. While plates deemed to be offensive, hateful, or simply in poor taste are not allowed, he also held that a Star Trek fan who copied the slogan of the fictional alien Borg, “ASSIMIL8” (assimilate), was offensive to indigenous peoples because of past history in Canada of assimilation policies regarding First Nations peoples. 
Although the license plate holder (Nick Troller) argued his license plate had nothing to do with ethnic or historical issues in Canada, and that his choice of “ASIMIL8” goes to one of the three core values underlying freedom of expression, being that of self-fulfillment, Manitoba Public Insurance (MPI) argued that licence plates are government property and are not platforms to provide an unqualified right to express oneself anywhere at any time or in any way.
While MPI acknowledged that “ASIMIL8” may be a Star Trek reference, academic literature about the Star Trek series was presented that the show is a “thinly disguised metaphor for colonialism”. The Borg are an alien race who is part living, part machine. The Borgs are technologically superior and assimilate any non-Borg creature into a Borg. According to the Borg, assimilation raises the quality of life for all species. As assimilation was the official policy of Canada towards the Indigenous people, the word assimilate may be “as offensive to Indigenous peoples that a swastika, Confederate battle flag or racial slur printed on a piece of government-issued identification would have for other members of society”.
While Justice Lanchbery accepted that Troller’s personal enjoyment of Star Trek and the Borg character specifically adds to his self-fulfillment, the proportionate balancing of the interests at stake weighed in favour of the administrative action taken by MPI to revoke his license plate.
In today’s society many professions, from funeral home and flight attendants to police officers and firefighters, have some restrictions placed on them regarding the public display of tattoos as part of their workplace dress codes. While challenges are being made to some of these policies under human rights and freedom of expression legislation, an employer’s uniform is generally not a forum for fostering public discourse on one’s personal, political or cultural beliefs. Although personal convictions – even the honestly held belief that one must announce such convictions to others are obviously matters of great concern to many members of the public – it is not always a matter of “public concern”.
*John Burchill holds a J.D. from the University of Manitoba. He was called to the Bar in 2011. He is a regular contributor to RobsonCrim Blog and the Manitoba Law Journal. The opinions expressed are his own.
 Burchill, John. “Tattoos and Police Dress Regulations”. Manitoba Law Journal, Vol. 36(1), p. 193. Online: https://www.canlii.org/w/canlii/2012CanLIIDocs265.pdf  Police Services Act, SM 2009, c 32, CCSM c P94.5.  Manitoba. “Province releases report on independent review of police services act”, November 5, 2020. Online: https://news.gov.mb.ca/news/index.html?item=49579  The Harris Poll® #12, February 10, 2016. “Tattoo Takeover: Three in Ten Americans Have Tattoos, and Most Don’t Stop at Just One”. Online: https://theharrispoll.com/tattoos-can-take-any-number-of-forms-from-animals-to-quotes-to-cryptic-symbols-and-appear-in-all-sorts-of-spots-on-our-bodies-some-visible-in-everyday-life-others-not-so-much-but-one-thi/  Tattoos, Uniforms and Dress Policy 5.4.9. Regulations and Procedure Manual, Vancouver Police Department (Effective: 2018.06.29). Online: https://vpd.ca/policies-strategies/vpd-regulations-procedures-manual/  Syndicat des travailleurs des services funéraires Dignité c Collins Clarke (CSI) (Service Corporation Internationale (Canada) ULC) (Réseau Dignité), 2021 CanLII 58004 (QC SAT), arbitre A. Garzouzi. Online : https://canlii.ca/t/jgrpn.  Fraternité des policiers et policières de Saint-Jean-sur-Richelieu et St-Jean-sur-Richelieu (Ville de), 2016 CanLII 64000 (QC SAT), arbitre J. L’Heureux. Online : https://canlii.ca/t/gtw8l  Canadian Union of Public Employees (CUPE) v. Air Canada (Policy Grievances re Tattoo and Piercing Policy). Online: https://accomponent.us6.list-manage.com/track/click?u=f6750312d5&id=a0a3dd2561&e=2e397171ed  Cory Matchem v. City of Brockton, Massachusetts Civil Service Commission. Case No. G1-19-234. Online: http://41af3k34gprx4f6bg12df75i.wpengine.netdna-cdn.com/wp-content/uploads/sites/19/2021/03/matchem_corey_031121.pdf  246 F.3d 500, 503-504 (5th Cir.), cert. den., 534 U.S. 951 (2001), the U.S. Court of Appeals upheld the city’s “no pins” policy, that prevented police officers from displaying any form of pins on their uniforms, even a small gold cross that symbolized an officer’s evangelical Christian faith. Also see Burchill, FN 1, page 209.  Troller v. Manitoba Public Insurance Corp., 2019 MBQB 157.