By Natasha Jategaonkar, Firm: Mathews, Dinsdale & Clark LLP

What should employers keep in mind when introducing a dress code for employees? This article looks at case law in Canada on dress requirements and sets out some key dos and don’ts for employers.

Workplace dress codes can be a fraught topic for many employers, whether the expectation is to dress conservatively in an office environment or to wear outfits that align with customers’ expectations in other industries. Several recent high profile cases have brought this issue to the fore in discussions among employers and employees alike, ranging from the outcry over the British Columbia (BC) legislature’s prohibition on sleeveless tops for women (which has since been reversed) to restaurants requiring staff to wear bathing suits. While employers do have the right to prescribe certain reasonable guidelines for what constitutes appropriate work attire, these policies should only be drafted or implemented with a clear understanding of what the law permits and requires.

As a starting point, workplace dress codes must always take into account the safety of employees. Employers can (and should) require that employees wear personal protective equipment in certain environments and also ban certain articles of clothing, such as loose scarves, in workplaces where that clothing might present hazards. Employers must also avoid implementing requirements that may lead to safety concerns. Requirements for women to wear high heels, for example, have recently gained attention as a health and safety issue. Such requirements are now prohibited in BC under occupational health and safety legislation.

Another key consideration is whether the dress code is discriminatory on the basis of sex, religion, or another ground protected under human rights law. Employees in both Ontario and BC have successfully filed human rights complaints against employers in relation to workplace dress codes. In McKenna v Local Heroes Stittsville (2013 HRTO 1117), the Ontario Human Rights Tribunal concluded that the employer, a sports bar, had discriminated against a waitress on the basis of sex when she requested accommodation for a new uniform policy that required staff to wear a ‘tight, form fitting’ shirt made to look like a sports referee’s jersey. The waitress was approximately five months’ pregnant at the time the new uniform was implemented, and she felt the tight shirt would make it more difficult for her to hide the pregnancy. Instead of accommodating, the employer cut her hours and sent her a Record of Employment (ROE) indicating her employment had ended. The Tribunal found the manager viewed the pregnancy as an ‘inconvenience’, inconsistent with his efforts to re-brand the bar and emphasise sexual attractiveness of staff as a means to attract younger clientele. His actions toward the employee constituted discrimination.

A similar conclusion was reached in Mottu v Barfly Night Club (2004 BCHRT 76), where the servers of a BC nightclub had themselves chosen the outfits to wear at a special beach-themed event: specifically, bikini tops with sarongs or shorts. One employee, Ms. Mottu, was not present at the meeting and was uncomfortable with the choice. She asked the employer if she could wear a dress over the bikini top and was told no. She could wear the bikini top, or not work the shift and not be paid. Ms. Mottu decided to work the shift, and arrived wearing a bikini underneath a shirt and sweater. The employer quickly moved her to a different area of the bar to sell less popular drinks (and thus earn fewer tips), and required her to remain there for subsequent shifts. The Tribunal found the employer’s actions were intended to force her to resign. Though the bikini tops had been the employees’ choice (minus Ms. Mottu), the employer approved the ‘uniform’ and condoned it. Its actions toward Ms. Mottu following her refusal to wear the bikini top alone constituted discrimination on the basis of sex.

Employers have the right to establish reasonable standards of dress they believe are necessary for the safe or effective conduct of business. However, certain best practices are advisable to ensure that workplace dress codes are lawful and stand up to scrutiny. In particular, employers should take care to avoid sexualised and/or gender-specific dress codes that impose different requirements for women and men, even where the style of dress may seem conservative or modest. Employers should also be prepared to accommodate for conflicts that may arise between dress code requirements and an employee’s religious beliefs or other grounds protected under human rights legislation. Allowing employees to select from a range of clothing options, hairstyles, and uniform sizes is advisable. Employers should consider input from employees when drafting dress code policies, as this may help reduce the likelihood of dispute or disruption down the road. Finally, employers should be aware of specific requirements regarding clothing and uniforms that may apply under applicable collective agreements and employment standards or occupational health and safety legislation.