My favourite part about the intersection between Employment and Human Rights Law is its dynamism. It is constantly evolving to respond to new challenges – or perhaps more accurately, respond to the important challenges that we may be overlooking. This is exemplified in the increasing debate over gender based discrimination arising from workplace dress codes.
In the past, human rights decisions regarding dress have been focused primarily on religious grounds, whereby the ability to wear a religious dress or carry a sacred ornament was affected by a school uniform policy, for example. The classic example of this is the Supreme Court decision of Multani v. Commission Scolaire Marguerite-Bourgeoys.
Employers are generally entitled to establish dress codes for the workplace. What happens however, when a night club employer decides on a “Hawaiian” themed night that its female bartenders are required to wear bikini tops while its male servers have no such requirements? How about when waitresses at a well-known chain of restaurants are expected to wear high heels and revealing clothing?
According to the Ontario Human Rights Commission, such gender specific dress codes constitute Human Rights Code-violating discrimination. In its recently released Policy Position on gender specific dress codes, the Commission cited cases dating back to the 1980s where women have taken their employers to human rights tribunals for emphasizing a sexualized workplace dress, with a large proportion of this taking place in the bar and restaurant industry. Other occupations such as massage therapy are also highlighted as being vulnerable to these types of rules. The OHRC emphasized the pressure that these employees may feel to dress like this for fear of losing tips, clientele, and jobs. Per the Policy Position, if a uniform dress code policy that is more difficult to meet for one gender than the other cannot be shown to be a legitimate requirement for a job, then it would be discriminatory under the Code.
This step by the OHRC makes Ontario one of the first provinces in the country to formally recognize the dress code issue through its Commission or governing human rights body. The problem itself, however, seems to be a national one, particularly since 22% of Canadians will have their first jobs at a restaurant or bar environment where this issue is apparently prevalent. The bikini top example above was taken from a British Columbia Human Rights Tribunal decision, Mottu v. MacLeod,  BCHRTD No. 68. The Manitoba Human Rights Commission has a very brief policy on its website addressing its jurisdiction to hear complaints about employment dress codes, but it does not go any further. Women in that province, however, are asking the Commission to follow Ontario’s example, particularly after cases such as a recent, widely reported incident of a Manitoba woman fired from her serving job after she shaved her head.
Media coverage of this topic was widespread in the weeks preceding the International Women’s Day release of this OHRC statement. The CBC launched an investigation into “sexy” dress codes at widely known restaurant chains in Toronto, in which some employees revealed the extent of the pressure they felt to dress provocatively, one interviewee claimed she was reprimanded for not showing enough skin . Other examples included a young woman of African-Canadian ethnicity being sent home from her job at fashion retailer Zara because her hair was in box braids and two female servers filing human rights complaints against popular restaurant Bier Markt after they were required to wear short cocktail dresses as part of their uniforms.
Perhaps the most troubling aspect of this issue is the fact that, given the way it has manifested itself in certain industries, it has become a common practice. Employers need to recognize at all times that they cannot implement policies that create such a harsh distinction between employees based on gender, religion, ethnicity, or otherwise. No one should have to show up to work feeling pressured to wear something that they are completely uncomfortable with only the sake of accumulating better tips or attracting clients. Changes to the Occupational Health and Safety Act are on their way to reflect the government’s increased commitment to preventing sexual harassment and sexual violence at work.
All employers have a duty under human rights legislation to remove barriers to equal participation in the workforce, prevent harassment and respond if and when it occurs. Employers should take human rights into consideration when designing a dress code. Creating rules which treat men and women differently, or sexualize either gender, is contrary to human rights legislation.
Employers in need of assistance in drafting appropriate policies for their workplace dress codes are welcome to contact us for assistance. Similarly, any employees in need of advice on a potentially discriminatory dress code practice can reach out to us for more direction.
by Richa Sandill
Author - Extraordinary Damages in Canadian Employment Law