By Vita Gauley
In November, 2015, as a result of concerns appearing in the media, including a CBC Marketplace inquiry focused on restaurant dress codes, the Ontario Human Rights Commission (Commission) was prompted to revisit its position and policy on sexualized or gender-based dress codes. The CBC Marketplace highlighted that while the issue seemed prevalent when visiting many mainstream restaurants, that it was often times not reported or litigated as many of the people who work in restaurants and bars are young women, often students, and are a fairly precarious workforce. As a result of these realities, the Commission revisited its position and policy and now, over one year after releasing this new policy, the Commission has released findings from an inquiry into related practices at large restaurant chains operating in Ontario. The focus of the Commission during this exercise was a “call to action” to employers to review their internal dress codes and remove requirements that were or may be interpreted as discriminatory. This call for self-review was to address those concerns bourne out in the media as well as to prompt employers to consider the potential that they may cause themselves to be open or exposed to human rights complaints if they fail to address this internally by taking such initiative. Despite those protections of the Ontario Human Rights Code (Code), many employers advertently and inadvertently continue to maintain sexualized or gender-specific dress codes. While the focus of the Commission inquiry was the food service industry, particularly in table service, it is not uncommon for employers to have dress codes that are differentiated or applicable to employees based upon their sex. In the restaurant sector in particular, the Commission found women expressed concern over requirements to dress or present themselves in a manner that is based upon sexualized expectations, such as wearing high heels, makeup, short skirts, and uncomfortable, tight or revealing clothing.
The Commission highlights that the consequences of these requirements to employees are not to be minimized and can be significant to both the individual employee and the greater workplace environment. The Commission heard restaurant workers describe feeling physically uncomfortable, humiliated, isolated if they fail to acquiesce to these standards, and even physically unsafe in the workplace as a result of such requirements or expectations. Workplaces that establish a tolerance for sexualized dress code standards and expectations risk creating a toxic workplace for all employees and not just those subject to gender-specific or sexualized dress codes. The Commission placed a significant focus on whether employers maintained policies or practices regarding expected attire or uniforms of employees and whether those policies created expectations of employees that were sexualized or gender-specific creating a discriminatory policy or practice. In such circumstances, employers were called upon to revisit their policies and make the necessary changes to ensure that they were Code compliant and that they did not create an unequal or differentiated standard based upon gender.
Following this inquiry and “call to action”, the Commission released its report and findings. The Commission has communicated that the response from employers was positive and that many employers had either developed new policies or amended their current ones to support the need to address these concerns of sexualized or gender specific attire and minimize those potential consequences the Commission highlighted. Employers in all industries should take note of this inquiry, as the legal obligation to make sure internal dress code requirements comply with the Code is not limited to the restaurant or food service industry. While the Commission focused its initiative in the food service and restaurant industry, it remains active through these initiatives to ensure compliance with the Code and its policy positions, and it is foreseeable that other workplaces may be the subject of similar directives in the future.
As a result of this recent initiative by the Commission, employers are well advised to take this opportunity to review and consider their own internal dress code policies. While Code compliance is paramount, employers should consider if their policies have an inadvertent discriminatory effect or if implied expectations have created a culture of gender-based expectations. Being proactive in amending these policies or re-establishing expectations not only assists employers in ensuring compliance with the Code, but it will reinforce an atmosphere of dignity and safety.
If you have any questions or concerns about compliance of your dress code policy with the Code or the Commission’s Policy, please contact Civita M. Gauley or Leanne E. Standryk at Lancaster Brooks & Welch LLP at 905-641-1551