Williams HR Law LLP

DOES EXCELLENT CUSTOMER SERVICE REQUIRE A SPECIFIC CUP SIZE? ONTARIO HUMAN RIGHTS COMMISSION RELEASES NEW POLICY ON SEXUALIZED DRESS CODES

March 8, 2016

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For anyone who’s dined at one of many of Canada’s popular chain restaurants or bars over the past decade, the employee uniform is familiar. It typically involves female servers sporting revealing apparel, from low-cut tops to micro skirts, as part of their mandated work attire. Their male colleagues, on the other hand, are typically asked to wear more relaxed (and far less risqué) clothing. In many cases, wearing those eyebrow-raising uniforms is a workplace requirement, not an option.   

But a new policy released today by the Ontario Human Rights Commission (OHRC)—and timed to coincide with International Women’s Day—is calling for an end to dress codes that link continued employment to a woman’s cup size.

Specifically, the policy calls for employers to abolish sexualized dress codes that require women to wear high heels, tight dresses, low-cut tops and short skirts as part of a workplace uniform.     The restaurant industry was identified by the OHRC as one in which sexualized dress codes are particularly prevalent, often affecting female hosts, bartenders and wait staff. 

In the new policy, the OHRC classifies these racy dress codes as a form of sex discrimination that violates the Ontario Human Rights Code (Code), because the dress codes reinforce sexist stereotypes about how one particular sex should look. Sexualized dress codes can also run afoul of the Code because they adversely impact a particular sex. For example, female employees may be required to meet more stringent dress requirements than male employees.

In Ontario, there have been several human rights cases in which the Human Rights Tribunal determined there was discrimination on the basis of sex because male waiters were allowed to wear pants while female waitresses were mandated to wear skirts. Other examples of discriminatory practice relating to sexualized dress codes involve the punishment of female employees for challenging a sexualized dress code, often by reducing their scheduled shifts.

The OHRC was clear in its policy that not all dress codes in the workplace would violate the Code. Dress codes can be necessary to ensure client-facing employees are presentable, for example. But employers should be cautious when basing dress codes on stereotypes or sexist ideas of how a woman or man should look. Further, sexualized dress codes may not only involve discrimination based on sex, but other prohibited grounds under the Code could be triggered including, race, religion and gender identity and expression.  Accordingly, employers fashioning dress codes should try to be as inclusive as possible regardless of sex, gender, race, religion and gender identity and expression by providing options for employee attire.

The OHRC also expressed concern about the increased potential for sexual violence and harassment by stating that sexualized dress codes can make a female employee more vulnerable to unwanted sexual attention in the course of employment. As we’ve explained in previous posts, employers should be aware of their responsibilities to prevent and respond to incidents of sexual harassment in light of the new changes to the Occupational Health and Safety Act, which formed part of the Government of Ontario’s 2015 Action Plan on sexual violence and harassment.

Of course, some employers might argue that a dress code is designed to promote a certain brand image, one that could be damaged by a change of uniform. In those cases, employers should be prepared to defend their position with evidence that sexualized dress codes can be legitimately linked to job requirements—which is clearly a high threshold to meet.    

The days of sexualized employee uniforms are likely numbered, at least in Ontario, which is why the OHRC’s new policy should serve as a wake-up call to employers who require female employees to don skimpy dresses or tops.

As sartorial scrutiny mounts, this new policy could present the perfect opportunity for a proactive wardrobe makeover.

 

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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