Michael Ford (post until Oct. 31/18)
Employment & Labour

OHRC tackles sexualized dress codes

Employers should take a fresh look at their dress codes in the wake of an Ontario Human Rights Commission investigation, says Hamilton employment lawyer Jennifer Zdriluk.

The OHRC report looked at sexualized and gender-based dress codes in restaurants and bars, finding they were “all too common” in the industry despite numerous human rights decisions finding them discriminatory.

“Whether in formal policy or informal practice, they contribute to an unwelcome and discriminatory employment environment for women. Female employees may face scrutiny to make sure they are abiding by the dress code and may experience employment-related consequences for failing to dress or wear their hair, makeup or jewellery in a particular way,” the report reads. “Employees may feel pressured to agree to sexualized dress requirements to get a job or because they fear losing tips, shifts, or even their jobs.”

Zdriluk, a partner with Ross & McBride LLP, says employers are entitled to enforce dress codes, but that they would be well advised to make sure they are complaint with Ontario’s Human Rights Code. To meet that standard, she says the requirements imposed by policies must have a rational connection to the performance of the job at hand. In addition, there should be mechanisms for accommodation requests and complaints.   

“If the dress code policies are just there because that’s what the owner thinks looks good, or because it’s the industry standard, then there will be issues,” Zdriluk tells AdvocateDaily.com. ”The commission has done a good job striking the right balance.”

OHRC’s Chief Commissioner Renu Mandhane drove the message home in an interview with the CBC when the report was released.

"Employers must make sure their dress codes don't reinforce sexist stereotypes," she said. "They send the message that an employee's worth is tied to how they look. That's not right."

Some examples in the report of dress code expectations that would violate the Code include high heel shoe requirements for women when men are allowed to wear low-heeled options; revealing skirts or dresses for female staff; and prohibiting women from wearing pants, among others.

Zdriluk says clients have come to her with complaints about sexualization in the workplace. In one case, a woman was fired from her job behind a bar after being told that “people don’t want to look at a pregnant woman while they’re drinking.”

“That’s clearly a breach of the Code,” she says. “Those complainants are doubly disadvantaged because if you’re fired at the wrong point of your pregnancy, it can affect your ability to make an EI claim.”

Zdriluk says religious concerns can also arise in the context of dress codes when an apparently neutral policy ends up disproportionately affecting members of one faith group.  

Despite the commission’s action on discriminatory dress codes, Zdriluk says employees should remember that they need to relate any complaint about a policy to a ground protected by the Human Rights Code, such as sex, gender identity, race, disability, gender expression or religious faith.

“An employer may say nobody can wear jeans. You may feel that’s a violation of your freedom of expression, but if you can’t relate it to a Code-protected ground, then the employer entitled to have that policy,” she says.

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