Ontario Human Rights Commission’s Policy Position on Gender-Specific Dress Codes

Written for First Reference by Christina Catenacci, BA, LLB, LLM, and PHD student at the University of Western Ontario

genderspecificdresscodeCan 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.”


  1. I think there should be separate dress codes for men and women. However, they should both be similar to each other in theme. If you want modest dress then both codes should adhere to that. if you want a more slack dress code then both codes should adhere to that. Anyways, you get my drift.

  2. Okay, I’ll say it, this is getting ridiculous. No one is forcing woman to work at a restaurant/bar that has a “sexualized” dress code. If they don’t want to dress in skimpy clothing, the answer is simple – don’t work there! There are plenty of other service jobs available in all types of establishments. They clearly know what they are getting into when they apply to a job at these places.

    I’m all about protecting the disadvantaged and discriminated against but this to me is becoming a case of government overreach.

  3. is it fair to ask if there may be restaurants or bars (especially bars) where the waitstaff are part of the atmosphere or entertainment? May such places exist where a certain sexualized atmosphere is created, as part of the attraction to customers?

    Is it permitted for such places to aim to attract male customers and not care so much about female customers, or vice versa?

    if so, can it not be argued that dressing in a way that will appeal to the intended customers is a bona fide occupational requirement? And it does not normally come as a surprise to the waitstaff that such things are expected. The Commission’s concerns do not seem to focus on a change of policy that affects existing employees, which could constitute constructive dismissal.

    Does the Commission believe that Hooters would have to hire a waitress in a burka, or even a woman who insisted on wearing a dress with a hem below her knees? Sometimes there may be an equivalent rule for men staff, but sometimes there may not be.

    As to demands to wear high heels for a full shift, that may be a matter for the employment standards or occupational health people.

  4. Christina Catenacci

    Thanks for your comments. To John G, it may be helpful to take a look at the case that set out the test for the BFOR (bona fide occupational requirement), Meiorin. This case established a three-step approach to determining whether an employer has justified a prima facie discriminatory workplace rule or standard. Under this test, the standard (let’s say, wearing certain outfits) will be upheld if the employer establishes that:

    1- it adopted the standard for a purpose rationally connected to the performance of the job;

    2- the standard was adopted in an honest and good faith belief that it was necessary to attain this legitimate work-related purpose; and

    3- the standard is reasonably necessary to accomplish the purpose. To prove reasonable necessity, it must be shown that it is impossible to accommodate the claimant and others sharing his or her characteristics without imposing undue hardship on the employer

    My feeling is that most sexy dress requirements would fail on the first arm of the test (being created for a purpose that is rationally connected to the performance of the job), but this type of analysis is done on a case-by-case basis.


    the case is here:

  5. Thanks, Christina. It seems to me that there is a lot of definitional play available. My question was whether “the job” could be defined as providing a sexy atmosphere while serving refreshments/food/drink/whatever. In other words, it’s not just serving; it’s serving as part of an entertaining atmosphere.

    If having sexy waitstaff is part of the overall effect, then it is part of the job of the employees to contribute to it, and one can’t do that job with an unsexy outfit.

    If the employer is not allowed to have that goal, then a lot of bars and clubs are doomed to boring outfits on the waitstaff.

    What’s considered sexy on men may involve different outfits than what is considered sexy on women. Will the Human Rights Commission and the Tribunal weigh on on that question – how much difference can there be while remaining sexy enough to attract customers?

    It seems like not a promising line of inquiry.

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