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
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.
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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