Written for First Reference by Christina Catenacci, BA, LLB, LLM, and PHD student at the University of Western Ontario
Can you think of a store, restaurant, or bar that appears to require women to wear low-cut tops, short skirts, tight dresses, or high heels when they go to work? Well, it might be wise for those employers to take another look at their dress code policy in light of the Ontario Human Rights Commission position on gender-specific dress code announced on International Women’s Day 2016 and the passing into law of occupational health and safety provisions protecting against workplace sexual harassment and violence. Under Bill 132, the OHSA’s definition of “workplace harassment” will be expanded to include “workplace sexual harassment.”
Renu Mandhane, the Ontario Human Rights Commissioner reminded employers “that low-cut tops and short skirts could violate the human rights code if they’re part of a dress code at restaurants, bars or any other workplace.” Such dress codes are “all too common in some restaurants and bars,” commissioner Renu Mandhane warned.
The commission issued a policy paper on gender-specific dress codes. This human rights position has a special focus on female and transgender rights in the workplace.
What does the policy say?
It confirms that some Ontario employers indeed require female employees to dress in a sexualized or gender-specific way at work (such as expecting women to wear high heels, short skirts, tight clothing or low-cut tops), and that these kinds of dress codes reinforce stereotypical and sexist notions about how women should look. In fact, this may effectively violate the Ontario Human Rights Code.
One of the most common workplaces where sexualized and gender-specific dress codes are present is the restaurant or bar industry. Essentially, the net result is that an unwelcome and discriminatory employment environment for women could translate into female employees feeling pressured to agree to sexualized dress requirements for fear of losing tips, shifts, or even their jobs.
This may make all employers worry about whether they are allowed to have a dress code – the answer is that yes, employers can have dress codes, but only if they do not violate employee protected rights under the Code. For instance, employers must make sure that any uniform or dress code policy does not undermine employees’ dignity and right to fully take part in the workplace because of Code grounds, including sex, gender identity, gender expression and creed (religion).
Moreover, 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. Employers must be able to show that any sex-based differences in the dress code are legitimately linked to the requirements of the job. If they cannot show this, the dress codes will be discriminatory. Take an employer that requires female employees to wear skirts, and male employees to wear pants – there is no reason for this (no reason tied to the job duties), and it is discriminatory.
What is more, sex-based dress codes may also make female employees more vulnerable to sexual harassment from other staff, customers and management. Since employers must remove barriers to women’s full and equal participation in employment, they must take steps to prevent sexual harassment and respond to it quickly when it occurs. To that end, when employers are creating dress codes to meet business needs, they are recommended not to rely on stereotypes or sexist ideas of how men or women should look – rather, they are recommended to think about a range of clothing options. Dress code policies need to be flexible and include everyone, regardless of their sex, gender identity, gender expression or religious faith. By thinking in terms of a range of acceptable clothing, employees will be able to feel like they can choose from this range of options without pressure or coercion.
On Tuesday March 8, 2016, which marked International Women’s Day, Kathy Laird, executive director of the Human Rights Legal Support Centre in Toronto stated:
Excellent customer service doesn’t have a cup size…I hope women will call us for legal help if cleavage is deemed an essential skill in their workplace”
Further, Renu Mandhane further stated:
We’re hoping to spur employers to think about their dress codes and be proactive so women don’t have to file complaints.”