Ontario Human Rights Commission Releases Position Paper on Sexualized Dress Codes

In a policy position paper on gender-specific dress codes, released on March 8 by the Ontario Human Rights Commission (OHRC), the OHRC sought to put an end to sexualized dress codes. The release of this paper also fell on International Women’s Day, a day earmarked to celebrate the social, economic, cultural and political achievement of women.

The OHRC paper posits women (and men) should not be expected to dress in a sexualized way to attract clients to bars, restaurants, or places of work. It clarified while employers can still have dress codes, “[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”.

The Ontario Human Rights Code (the Code) states that every person has a right to equal treatment with respect to employment without discrimination or harassment because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.

In reference to employment dress code policy, the OHRC found that an employer’s sexualized dress codes may make employees more vulnerable to sexual harassment, contribute to discriminatory work environments and exclude people based on sex, gender identity or expression and creed.

A sexualized dress code could also shut out potential employees who practice a specific religious belief, or transgendered individuals who do not feel comfortable in that type of clothing, continued OHRC’s Chief Commissioner, Renu Mandhane.

The OHRC further acknowledged that employees might feel pressured to dress in a proactive manner “because they fear losing tips, shifts, or even their jobs” for failing to comply.

Such a dress policy would very likely be in violation of the Ontario Human Rights Code.

It is important that employers (be they in the service industry or not) review their workplace dress policies to ensure they are in compliance with the Code.

One prominent restaurant chain in Toronto took this call into action.

Earls, one of Canada’s major casual-dining chains, said it is amending its dress code to give female servers the option of wearing slacks instead of skirts.
Although female servers at Earls have been allowed to wear pants “on request,” the company’s “suggested” dress code up until now has mentioned only one option: black skirts no shorter than one inch above the knee.

That will now change with the inclusion of a “straight-cut plain black pant” option, said Cate Simpson, an Earls spokeswoman. “Female servers will now be offered the choice rather than having to request it,” she said.

“We made the decision on pants based on (Tuesday’s) Ontario Human Rights statement as up until (now) we were unaware that allowing pants on request, versus offering them as a choice, was discriminatory.”

The OHRC cautious, ‘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’.

In a cheeky fashion, Kathy Laird, Executive Director of the Human Rights Legal Support Centre, stated: “Excellent customer service doesn’t have a cup size”. “[employees] should seek legal help if cleavage is deemed an essential skill in their workplace”.

It is extremely important that employers and employees be aware of their rights and obligations. The OHRC’s position paper comes “on the heels” of the passing into law of occupational health and safety (OHSA) 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.”

What This Means:

    • Employers must make sure their dress codes don’t reinforce sexist stereotypes.
    • Employers that require women to wear low-cut tops, short skirts and/or high heels, may be in contravention of the Code as “these kinds of dress codes reinforce stereotypical and sexist notions about how women should look”.
    • When setting out dress codes to meet business needs, employers should not rely on or sexist ideas of how men or women should look. Employers should 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. Employees should be able to choose from [a] range of options without pressure or coercion.
    • It’s a good time for employers to review their harassment and dress-code policies.
    • Employees who have been or are subjected to sexualized dress-code policies may have a human rights claim against their employer.

If you have any questions about unfair employer treatment and/or termination, or your rights and obligations in employment law generally, contact Monkhouse Law today.

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