Williams HR Law LLP

DOES YOUR COMPANY’S DRESS CODE VIOLATE THE HUMAN RIGHTS CODE?

November 27, 2015

[vc_row][vc_column width=”1/3″][vc_single_image image=”2010″ img_size=”full”][/vc_column][vc_column width=”2/3″][vc_column_text]Employee dress codes have long been a fixture for customer-facing employees working in the service industry. However, we have recently seen numerous high-profile legal challenges to dress code policies.  Specifically, some employees have claimed that their employers’ dress code policies are discriminatory, often with success. Employers are cautioned that their dress code policies could be subject to scrutiny under the provisions of the Ontario Human Rights Code (the “Code”). The following are some recent examples of dress code policies that have been challenged by employees and unions. Employers should also take note that the propriety of dress code policies are being addressed through the legal system, but also by the public through novel web-based applications. Regardless of the forum of the criticism, employers in such industries should be aware of the adverse reputational impact that allegedly discriminatory dress codes could have on its business.

THE BIER MARKT DRESS CODE CONTROVERSY

A company dress code policy that distinguishes between genders has the potential to be deemed discriminatory on the grounds of sex and gender under the Code. Earlier this month, Becky Lockert, a waitress at a popular restaurant chain called “Bier Markt”, announced her intention to file a complaint with the Human Rights Tribunal of Ontario (“HRTO”) because of Bier Markt’s new requirement that waitresses wear a revealing uniform and high heeled shoes during their shifts. The uniform for waitresses, consisting of a blue cocktail dress made of cloth that Ms. Lockert described as “very, very thin” and “similar to that of a bathing suit” along with high heels, is a dramatic change from Bier Markt’s previous dress requirement that all servers wear a black golf shirt, along with black pants. It is also dramatically different than the new uniform for Bier Markt’s male servers who wear jeans, a black button-down dress shirt and red sneakers.

Despite Ms. Lockert’s complaints to Bier Markt’s management that the dress and high heels made her feel uncomfortable and sexualized, Bier Markt maintained the new dress code. Ms. Lockert eventually quit her job at the Bier Markt, alleging that the dress code made her feel that she could no longer work there. The Bier Markt did back down on these changes, but only after the CBC brought the matter to the attention of the general public. Ms. Lockert states that she will proceed with her complaint to the HRTO.

RECENT DECISIONS RELATED TO DRESS CODES

Ms. Lockert’s complaint will likely be successful, as adjudicators have increasingly found company dress code policies to be discriminatory. The following recent dress-code related cases have ruled in favour of the employee:

  • CUPE Local 4000 v. The Ottawa Hospital (2013): The Ottawa Hospital attempted to implement a dress code policy mandating that hospital employees cover up their tattoos and remove their piercings while at work; was found to be “void and unenforceable”.  The Arbitrator cited a lack of patient complaints about the staff’s tattoos and/or piercings, stating in his decision that “the hospital has attempted to fix a problem that does not exist.”
  • Canadian Union of Public Employees, Local 1767 v BC Assessment Authority (2014): A British Columbia Arbitrator rescinded the BC Assessment Authority’s attempt to prohibit employees from wearing blue jeans and short pants while at work. In his decision, the adjudicator stated that “it is offensive to (the employee’s) professionalism to tell them they cannot wear certain articles of clothing,”

MEDIA AND SOCIAL PRESSURE

Bars and restaurants are also increasingly subject to social pressures to reform prevailing dress code practices. For example, four female university students in Edmonton created a website called the Feminist Eatery Database – Undercover Project (F.E.D.U.P) on which employees, employers and patrons at bars and restaurants in the Edmonton area discuss their experiences with sexism in the restaurant industry. The website features an interactive checklist, through which users can describe the dress codes at local bars and restaurants. The checklist acknowledges the unfortunate reality that female employees are often pressured to follow an informal “dress code” which often includes revealing clothes and high heeled shoes.

WHAT IT MEANS FOR EMPLOYERS

Although recent decisions do not preclude all employees from mandating that their customer-facing employees wear uniforms, they certainly establish parameters for appropriate mandated uniforms. Employers, especially those in unionized environments and/or in the service industry, should be aware of potential human rights exposures before attempting to implement a mandatory dress code.  Employers must also be prepared to justify the business and/or health and safety purpose of any dress codes they currently have in place. Additionally, social pressures provide a compelling reason to consider gender-neutral dress code policies.

 

This blog is provided as information and a summary of workplace legal issues.

This information is not intended as legal advice.

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