When I do respectful workplace training, one of the responses I often hear is, “Does this mean I can’t compliment my co-worker’s hair/clothes/eyes/jewelry?” My answer is always an annoyingly lawyerly one: “It depends.”

A comment that pertains to a colleague’s appearance has the potential to create a welcome personal connection. It can also cause harm. A set of recent decisions from the British Columbia Health Professions Review Board (the “Board”) provides some insight on when comments on a person’s appearance are inappropriate.[1]

A complaint was submitted to the College of Physicians and Surgeons of British Columbia (the “College”) based on a patient’s experience with a cardiologist who gave her an electrocardiogram assessment (“EKG”). At her appointment with the cardiologist, she was asked to enter an examination room, remove her clothing from the waist up and put on a patient gown. When the cardiologist returned to the examination room, he removed the gown and began applying electrodes to the patient. While he did this, he and the patient engaged in conversation about the patient’s relatives in Australia, among other topics. As the cardiologist walked towards the EKG machine to start the assessment, he asked the patient what the ‘M’ on her necklace signified.

The impact of this comment, within the context of an examination where the patient was exposed, was significant. In her letter to the College wherein she described this comment, the patient stated:

The Tiffany signature ‘M’ necklace I have worn every day for almost four years since my husband gave it to me on our daughter’s first birthday is now in the garbage…it became a constant, physical reminder of what happened and what was taken away from us: my dignity and privacy.

The College’s initial response to this complaint was that this necklace comment was acceptable “small talk.” Upon reviewing the College’s response, the Board found that the College side-stepped the issue of whether making such a comment in this context was inappropriate. The College then revisited this comment and revised its response to state the following:

While [the cardiologist] has submitted that he was attempting to put [the patient] at ease in making small talk about her necklace…[it] is the College’s recommendation that registrants practice universal precaution in order to foster a comfortable and safe environment for patients. This includes not making comments about a patient’s appearance, including jewelry.

The College based its revised response on the preamble to a section in the College’s Professional Standards and Guidelines related to “sensitive examinations,” which states:

In order to minimize complaints from patients relating to perceptions of inappropriate conduct…Physicians should be careful to ensure that any remarks or questions that are asked cannot be construed as demeaning, seductive or sexual in nature.

The College and the Board recognized that the necklace comment was not sexual in nature. However, it was clearly construed as being sexual or otherwise inappropriate by the patient. The cardiologist did not have his medical license suspended because of this comment, but he was brought in for an interview to discuss the complaint and demonstrate his understanding of why the comment was inappropriate.

This case demonstrates that when someone is in a vulnerable position, drawing attention to their appearance or apparel for a non-work-related purpose, whether or not it is sexual, may trigger an active or latent sense of discomfort. Even in workplaces where colleagues are not physically examining each other, some are in vulnerable positions because of their age, seniority or job status. When someone is vulnerable, it is more likely that such a comment will be upsetting, hurtful or just uncomfortable.

What the cardiologist did not appear to do – and what we all should endeavour to do when thinking about whether to comment on a colleague’s appearance – is ask ourselves the following questions:

1. Do I hold a position of power, whether actual or perceived, over this person?

2. Does the comment on their appearance implicate the person’s sex, gender identity, gender expression, sexual orientation, race, colour, ancestry, place of origin, ethnic origin, creed, disability or age?

3. Have there been any explicit signs that, regardless of the answers to the two previous questions, this person would welcome this comment on their appearance from me?

It is possible that making a comment about a colleague’s appearance without asking yourself these questions could get you into trouble. Such a comment could potentially violate the Human Rights Code or the Occupational Health and Safety Act. A strictly risk-averse approach would be to never comment on another person’s appearance at work, much like the “universal precaution” approach that the College endorses for physicians doing sensitive examinations. But if you choose to take the time to ask yourself these questions and gain the knowledge you need to answer them accurately, you could make a comment on a colleague’s appearance that is considerate, thoughtful and welcome.

[1] Complainant v. College of Physicians and Surgeons of British Columbia, 2018 BCHPRB 6, Complainant v. College of Physicians and Surgeons of British Columbia, 2019 BCHPRB 69