Is Your Workplace Dress Code Discriminatory?

I recently saw an excellent feature by CBC’s Marketplace,  which explored female dress codes in a few popular national eateries and bars. The female servers featured in the segment discussed the rigorous dress code requirements, which forced them to wear very short skirts (six inches above the knee-line), high heeled shoes, statement jewelry, a full face of make-up, and their hair done as if they were going to a nightclub. Though these restaurants and bars also had dress code policies for men, male dress codes were not as stringent or designed to be sexually overt. The segment included commentary from my friend and highly respected law professor Joanne St. Lewis, who rightly pointed out that such dress codes could be seen as harassing or discriminatory under Human Rights legislation.  Just yesterday (coincidentally, on International Women’s Day) the Ontario Human Rights Commission issued a policy statement calling for an end to sexualized dress codes that discriminate against female and transgender employees.

Ontario’s Human Right’s Code (the “Code”) provides that every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.  The Code does not define discrimination or sexual discrimination, but it is generally accepted to be an action or a decision that treats a person or a group people negatively for reasons such as their sex, sexual orientation, gender identity or gender expression.

Typically, when we think about discrimination based on dress code, we think about those cases of direct discrimination where an employee of a particular religious belief is unable to wear a workplace uniform that conforms to requirements of the employer (such as the Muslim airport employee who could not wear a knee length skirt or the Sikh RCMP officers who wanted to wear their turbans). But it is important to note that discrimination is not always ‘direct’: the Code also protects against “constructive” or “adverse effect” discrimination, which occurs when a rule or practice unintentionally singles out a particular person or group of people and results in unequal treatment.

So how can you make sure that your dress code is not discriminatory?

• Examine your dress code policy and determine whether there is inequality in the manner in which female employees are required to dress compared to male employees. Are there more rules for what female employees can and cannot wear?
• If there is a difference between the dress code policies for male and female workers, determine whether there is a rational reason for the dress code requirement. For example, it would be hard to establish a rational reason or occupational requirement for a female server to wear short skirts or high heels – this type of dressing makes it more difficult to manage the physical demands of serving customers. Including this requirement as part of a female dress code policy is more likely to be seen as discriminatory.

There is no harm in creating a workplace policy that requires employees to dress in an manner, which conforms to the setting of your bar or restaurant. However, when that policy crosses the line and sexualizes a group of workers, you might be setting yourself up for a Human Rights complaint with legs (pun intended), which could land you in hot water.