Beauty is in the Eye of the Employer

Feb 2, 2011

In case you missed the headlines two years ago, another Canadian server has been fired for shaving her head.  A recent article in the National Post has caused much debate over the server’s “right” to shave her head with impunity in support of cancer.
Stephanie Lozinski, a Manitoba server, shaved her head to support her uncle’s battle with cancer.  Soon after, she was told that her bald head was not in keeping with the restaurant’s dress code and that she would be let-go.  Manager Linh Bo was quoted as saying, “If you go to fine dining, what do you expect from a server? Seriously.”  Soon after, Lozinski launched a complaint to the Manitoba Human Rights Commission.
Seems like a slam dunk right?  But before you jump to any conclusions, here are a few things to consider…
What is protected under the human rights legislation?
Human rights laws prohibit discrimination based on particular “grounds” that are listed in the relevant legislation.  All provinces prohibit discrimination and ensure equal treatment based on: age, sex, marital status, sexual orientation, religion, colour, creed, disability, etc.  The legislation recognizes these prohibited grounds as inalienable characteristics.
What is not protected?
Anything not listed as a prohibited ground does not have protection pursuant to the human rights legislation.  This means an employer can choose not to hire bald people, people with tattoos, people with facial piercings, freckles, facial hair, or, as in this case, people with certain hair styles.
Further, an employer can create and enforce dress codes prohibiting employees from having any of the above.  Why?  Unless the characteristic is directly related to a prohibited ground, such as religious dress requirements, it is not protected, and it’s not a “right”.
For example, a man working in a soup kitchen may have grown a beard for religious reasons or simply from a lack of maintenance – the difference in rationale matters to the tribunal in determining whether the employee deserves protection, or deserves to go.
How does this apply to the case?
If Lozinski were terminated because she had cancer this would be discriminatory.   If her employer allowed male employees to have a shaved head, but not female employees, this would be discriminatory.  But despite the fact that Lozinski shaved her head in support of a prohibited ground, this does not provide her with impunity from discipline or termination.  Especially if she knew about the dress code and shaved her head anyway.
In the end, the Manitoba Human Rights Commission refused to hear her complaint as it was unrelated to a prohibited ground of discrimination.  Though her decision to shave her head was commendable, there were other ways she could have shown support and brought attention to the issue without jeopardizing her job.
Lessons for other employees?
Employees will want to think twice and check with their employers before contravening the dress code in support of a prohibited ground.  For example, those participating in ‘Movember’ without their boss’s approval may be subject to discipline, as facial hair without a religious purpose has no protection under the code.

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