What Not to Wear: when dress codes violate employees’ rights

The recent publicity around dress code changes for female employees at Bier Markt, a chain restaurant with locations across Ontario, is a clear reminder of how workplace policies that aim to control employees’ dress or appearance can raise red flags from a human rights perspective.

Although Bier Markt has now announced that it will be providing all staff with a unisex uniform option, its original policy, which came into effect on October 5, 2015, set up two separate dress code standards for its servers. Male servers were told they could wear jeans, a button-down shirt and running shoes. Women, however, were required to wear a short, sleeveless blue dress and heels or boots. They were also prohibited from wearing jackets, sweaters or thick tights.

CBC’s Go Public Investigation reported that more than 40 female employees filed complaints regarding the new dress code and at least one individual resigned in protest.

Discriminatory Dress Codes

The battle over discriminatory dress codes, particularly in the service industry, has been a long one.

In 1987, the Ontario Divisional Court was asked to consider whether a dress code policy requiring waitresses to wear “harem outfits” was a violation of the Human Rights Code. The majority held that the dress code was not discriminatory because, while men and women were being treated differently, the female employees did not suffer adverse consequences in terms of their employment opportunities.

In a strongly worded dissent, however, Justice White departed from the majority and found that the dress code was, in fact, discriminatory:

The test propounded by the board of inquiry at p. 38 suggests that a degree of discrimination is permissible so long as the conditions of employment for employees of one sex are not “clearly more burdensome or exploitative” than those for employees of the other sex. The Ontario Human Rights Code prohibits any discrimination in employment. There is nothing in the Code that justifies the imposition of a sexually exploitative uniform based on the finding that the uniform does not exceed “commonly accepted social norms”. The board also erred when it purported to vary the test by stating that the wearing of a uniform might be justified on the basis that it be “reasonably related to the employer’s needs”….

Fast forward to the present day, and we find that Justice White’s approach to the issue of dress codes has now been widely adopted. In the 2004 decision in Mottu v MacLeod and Barfly Nightclub, for instance, the British Columbia Human Rights Tribunal found discrimination on the basis of sex where female bar staff were required where outfits which were gender-specific and sexualized, while male bartenders and door staff were not subject to the same requirements.

Workplace Policies and Personal Appearance

Even more recently, arbitrators in the context of unionized workplace have struck down a wide variety of dress code policies as unreasonable.

In 2013, the Ottawa Hospital’s policy prohibiting large tattoos and body piercings was struck down as unreasonable. While not based on a human rights argument, the Arbitrator drew a parallel to human rights and found that the policy was based on stereotypes around tattoos and piercings, rather than genuine workplace concerns.

Similarly, in July 2015, a policy prohibiting shorts and jeans was also found to be unreasonable. The arbitrator held that there was no objective evidence that wearing jeans or shorts would have a negative impact on the employer’s image. Given that the previous dress code had allowed employees to determine what dress was appropriate and professional in the workplace, the arbitrator concluded that the new prohibition was an unjustified intrusion on the ability of employees to exercise their own good judgment.

This move towards a more robust recognition of the intrusive and often discriminatory nature of workplace dress codes suggests that employers will need to be cautious when implementing policies aimed at controlling employees’ personal appearance. Where those policies do not address genuine workplace concerns, such as health and safety, they may be subject to scrutiny, particularly where they undermine dignity or enforce more difficult dress requirements on certain groups.

[This article is for informational purposes only and does not constitute legal advice, which cannot be given without consideration of your individual circumstances.]