Article kindly contributed by: Alistair Vigier at Clearway Law
Whether it’s at the workplace, a school, or even a nightclub on a Saturday night, many places purport to dictate how people should dress. Businesses, of course, want their employees to look professional and project an image that reflects well on the company, rather than allowing an anything-goes type atmosphere. Schools, both public and private, want their students to look presentable and prohibit certain types of clothing that may be too revealing or carry offensive images or profanity. Nightclubs may use dress codes to keep out people they consider undesirable as patrons.
But the idea that a business or public institution can, as a matter of policy, tell people what to wear can surely seem problematic in a free and democratic society where we’re guaranteed the right to free expression. So, the question is: Are dress codes legal in Canada?
The short answer to that question is “yes,” but that doesn’t mean that all dress codes are acceptable under federal and provincial human rights codes. There are certainly plenty of jobs that require uniforms, or at the very least, for employees to keep well groomed and show up to work looking presentable if part or most of their job requires them to interact with the public.
Employees of different genders
When dress codes become problematic and likely illegal, however, is when they impose different rules on employees of different genders. For example, requiring female-identifying employees to wear skimpy or form-fitting clothing, high heels, or short skirts while allowing male employees to wear loose-fitting t-shirts and sneakers will likely get an employer hauled in front of a provincial human rights tribunal for discrimination.
The Ontario Human Rights Commission, for instance, warns employers that requiring female employees to abide by a dress code that unnecessarily sexualizes them is likely a violation of the province’s Human Rights Code. This could include tight-fitting clothing or low-cut shirts that emphasise a woman’s midriff or cleavage. According to the Commission, dress codes like this are discriminatory because they “reinforce stereotypical and sexist notions about how women should look.”
Dress codes that violate human rights legislation are commonly found in the service industry. In turn, these policies have faced repeated rebukes after complaints have called out managers at bars, restaurants and pubs that have been found to have cultivated discriminatory work environments towards mostly women. Despite objecting to certain requirements to wear makeup or jewellery or keep their hair a certain style, many women may agree to them due to the fear of “losing tips, shifts, or even their jobs.”
Businesses are allowed to have dress codes for their staff, but such codes must avoid any requirements that may “undermine employees’ dignity,” the Commission’s policy position states. Provincial human rights codes prohibit discrimination base on race, sex, gender identity, gender express, and religion. Therefore, requiring a Muslim woman to take off a hijab and wear a short skirt, or a disabled person to wear a “restrictive” garment is most certainly a violation of the Human Rights Code.
Discriminatory and unlawful
Where dress codes get companies into hot water is when they impose different requirements on female and male staff members. In case after case, management at bars and restaurants have faced costly human rights awards after being found to have blatantly violated the code by making female employees dress in a sexualized manner to bring in business. Not only have tribunals found these codes discriminatory and unlawful, but also that they increase female employees’ vulnerability to sexual harassment from coworkers and customers alike.
If businesses want their employee dress codes to comply with provincial and federal human rights codes, the Ontario Human Rights Commission states that companies must have a valid business case for having them. In addition, they must ensure that their dress codes don’t “rely on stereotypes and sexist ideas of how men or women should look.”
The OHRC offers a checklist of how dress codes can be crafted to comply with human rights codes. According to the commission, they should allow for a broad range of allowable clothing options for employees of all sexes and gender identities. They cannot impose a code requiring employees to wear overtly sexualized garments, nor can they have rules that only apply to women, such as “onerous” make-up or hairstyle expectations. Moreover, employers should be open to accommodating employees who may be unable to comply with certain aspects of the company’s dress code.
Problematic dress code requirements
Over the last few decades, plenty of employers have found themselves the subject of human rights complaints over their problematic dress code requirements. Back in 2018, for example, the Canadian Union of Public Employees led a federal human rights complaint against Air Canada after it unveiled new uniforms for flight attendants. The union’s complaint alleged that the company held a “sexualized” fashion show where members were put on display down a catwalk and then graded on how they looked.
The airline introduced the new uniforms along with an employee handbook that had several pages featuring make-up advice for female flight attendants, which many employees objected to after allegedly facing unwanted comments from managers about how they should “show more cleavage.”
Gone are the days when companies and male-dominated management level employees could get away with harassing and demeaning their female colleagues. Both federal and provincial human rights codes rightly prohibit this type of behaviour, which for years prevented women from fully participating in employment environments where toxic and harassing behaviour was both normalised and tolerated. There’s surely no doubt that a company should expect their employees to take pride in their appearances as representatives and ambassadors of a brand.
But to expect them to accept a dress code policy that demeans them and reduces them to sexualized objects there for the viewing pleasure of male colleagues and customers is simply no longer the norm, and rightly so. In the 21st century, there’s simply no place for discriminatory practices that contribute to the oppression and subjugation of vulnerable and marginalized groups any longer in a modern democratic society that values justice, equality, and inclusion.
Alistair Vigier is the CEO of Clearway Law, a website that allows the Canadian public to find the best lawyer for them.