The Ontario Human Rights Commission yesterday – International Women’s Day – released a policy statement on gender-specific dress codes in the workplace advocating for “an end to sexualized dress codes that discriminate against female and transgender employees.”
According to the OHRC, sexualized dress codes – including those that require female employees to wear “high heels, short skirts, tight clothing or low-cut tops” which may be common place in some types of entertainment and hospitality industries – “reinforce stereotypical and sexist notions about how women should look and may violate Ontario’s Human Rights Code.” Citing an American survey produced by a group representing employees in the restaurant industry, the OHRC policy statement states that sexualized dress codes make female employees “more vulnerable to sexual harassment from other staff, customers and management.”
The OHRC’s policy statement provides as follows:
Female employees should not be expected to meet more difficult requirements than male employees, and they should not be expected to dress in a sexualized way to attract clients. An employer should be prepared to prove that any sex-based differences in the dress code are legitimately linked to the requirements of the job. Where this cannot be shown, these dress codes will be discriminatory. For example, in one human rights case, in the absence of any justification by the employer, a tribunal found that the employer’s expectation for female staff to exclusively wear skirts, while allowing male staff to wear pants, was discriminatory.
A workplace dress code must comply with the requirements of the Code which means it cannot directly or indirectly discriminate on the basis of a prohibited ground, including with respect to sex, gender and religion and the other prohibited grounds of discrimination, without legal justification. An employer can defend against a claim that a dress code is discriminatory if it can establish that the specific requirement is linked to a “bona fide” requirement and that accommodation to the point of undue hardship is not possible. Generally, however, an employer’s commercial interests or its client preferences will not be sufficient to meet this stringent test.
The OHRC’s policy statement is not law nor is it binding on the Human Rights Tribunal of Ontario. The Tribunal may consider the OHRC’s approved policies in rendering its decisions and is required to do so where a party or intervenor in a proceeding before it makes such a request. It remains to be seen how the Tribunal applies this recent policy statement. It is prudent for employers to regularly review dress code requirements, including requirements for personal appearance, to ensure compliance with the requirements of the Code.
Attached is a link to the OHRC’s policy statement: http://www.ohrc.on.ca/en/ohrc-policy-position-gender-specific-dress-codes.