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January 30, 2017

What Not to Wear: An Employer's Guide to Dress Codes and Personal Appearance Policies

Author Todd Weisberg

Many employers choose to have dress codes or personal appearance policies in their workplace. Such policies might include a rule that requires employees to wear professional attire or maintain proper grooming habits. Employers may impose such policies and there are many reasons as to why they might choose to do so. These reasons range from a desire to maintain a professional public image to ensuring health and safety in the workplace. However, there are a number of factors which can impact an employer’s ability to enforce and rely on these policies, one of which being if the policy is discriminatory, specifically on religious or sexualized grounds. However, there may be exceptions where it can be shown that the policy is a bona fide occupational requirement of the job.[1] Employers who intend to rely on or implement new dress code policies should be mindful as to whether their policy is discriminatory and the reasons for the policy.  

Religious Grounds and Personal Grooming

Employers cannot implement dress codes or personal appearance policies which discriminate based on one of the enumerated grounds protected under the Ontario Human Rights Code (the “Code”). Even rules which appear neutral on their face can have the unintended consequence of discriminating against a particular group of individuals. For example, requiring all male employees to be clean shaven might unintentionally discriminate against employees who have facial hair for religious reasons. Many policies include “carve-out” exceptions to accommodate for this type of religious-based need.

As long as dress code policies avoid discriminatory provisions or offer accommodations for Code based needs, employers are entitled to implement policies which require proper grooming habits. For example, employers can implement a policy which requires employees to refrain from having certain styles of facial hair.

Last year, the Ontario Human Rights Tribunal in Browne v Sudbury Integrated Nickel Operations found that a “clean-shave” policy, which prohibited certain styles of facial hair, was not discriminatory based on sex or gender identity. The “clean-shave” policy was required for employees who worked in the smelting plant and needed to wear a respirator mask for certain tasks. Although this decision could have proceeded on the issue of whether the “clean-shave” policy was a bona fide occupational requirement, the Tribunal decided to deal solely with the preliminary issue of whether the policy was discriminatory. The Tribunal held that having a beard or facial hair is a matter of personal style and is not a matter of sufficient social significance to warrant protection under the Code, absent any connection to another protected ground.

Religious Freedom versus Health and Safety

In some work environments, employers will implement dress code policies for specific health and safety purposes. For example, employers in the construction industry often require that all workers wear protective helmets in order to avoid head injuries.  The employer implements this policy in order to protect workers and comply with health and safety legislation.  However, these policies might have discriminatory consequences for individuals who wear religious head coverings, such as a turban. In these situations, a conflict develops between an individual’s right to freedom of religion, and a company’s right to comply with health and safety legislation.

This issue arose most recently in a Quebec decision, Singh et al v. Montreal Gateways Terminals et al, where an employer operating a marine terminal required Sikh workers to wear helmets over their turbans. The type of work being done exposed workers to a substantial risk of head injury. The employer attempted to accommodate the workers by allowing them to do work which did not require wearing hard hats, however, the employees rejected this accommodation. The Quebec Superior Court acknowledged that this policy was discriminatory on its face, however found that it was justified in light of the fact that it was adopted in good faith, reasonably necessary to the type of work being done and implemented to comply with legal obligations. This decision was based on Quebec’s Charter of Human Rights and Freedoms, which is distinct from Ontario’s human rights legislation. However, the analysis is similar to the bona fide occupational requirement and would likely be applied similarly in Ontario.

Sexualized and Gender Specific Dress Code Policies

Employers have tended to run afoul of the Code when implementing sexualized or gender specific dress code policies. A few recent decisions provide examples of how the strict enforcement of these policies has resulted in a finding of discriminatory behaviour by the employer. 

In Ontario, the Human Rights Tribunal in McKenna vs. Local Heroes, Stittsville, awarded a pregnant employee compensation for lost income and damages after her employer stopped scheduling her and eventually terminated her employment for refusing to wear a tight fitting uniform in accordance with the new dress code policy.

Similarly, the British Columbia Human Rights Tribunal, in Mottu v MacLeod, awarded compensation for lost wages and damages to an employee who refused to wear a bikini top to serve alcohol at a nightclub event. The employer moved her into a less desirable position and scheduled her for fewer hours. The Tribunal found that she was essentially forced to quit her job.  

In Newfoundland and Labrador, the Human Rights Tribunal in Noseworthy v Canton Restaurant, found that an employer had discriminated against a female employee when it made wearing a skirt a condition of employment. The Tribunal noted that the requirement for female employees to wear skirts was sexist and a distinction based solely on gender. Additionally, the Tribunal noted that the employer refused to let the employee wear pants instead of a skirt.  As a result, the Tribunal ordered that the employer change their uniform policy.

In 2016, the Ontario Human Rights Commission (the “OHRC”) published a policy position on sexualized and gender specific dress codes in the workplace which is in line with the above cases. The OHRC acknowledged that employers are entitled to have dress codes, however the Commission noted that “dress code requirements that create adverse impacts based on sex violate human rights laws”. A dress code policy which distinguishes between male and female employees would create such an adverse impact. The OHRC noted that employers bear the onus of showing that any gender-based differences in dress code policies are a legitimate requirement of the job.

Takeaway for Employers:

Without sacrificing workplace image, employers will benefit from implementing a dress code policy that has some flexibility built into it. Providing flexibility to employees is an effective way for employers to avoid running afoul of the Code. If flexibility is not practical, then policies should provide exceptions for Code protected grounds.  

Additionally, employers operating in safety sensitive work environments should attempt to accommodate employees who experience discrimination as a result of a workplace dress code policy. Accommodating employees may include finding alternative positions within the organization. However, accommodation should not require the creation of a new position, nor should it require employers to sacrifice a bona fide occupational dress code policy implemented for safety purposes.  

The foregoing is for informational purposes only, and should in no way be relied upon as legal advice. For legal advice tailored to your circumstances and business, please contact any of SOM LLP’s lawyer’s by email or telephone.

[1] In order to demonstrate that an otherwise discriminatory requirement for employment is a bona fide occupational requirement (“BFOR”), an employer must satisfy a three-part test: (a) there must be a rational connection between the BFOR and the performance of the job; (b) the BFOR must have been established with an honest and good faith belief that it is necessary to fulfil a legitimate work-related purpose; and (c) the BFOR must be reasonably necessary to meet that purpose.

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