June 8, 2016

On March 8, 2016, International Women’s Day, The Ontario Human Rights Commission (OHRC) released a policy position calling for an end to discriminatory, sexualized dress codes that discriminate on the basis of sex and gender identity.

Many Ontario employers, particularly in the food and beverage service industry, require female service staff and bartenders to dress in a way that differs from their male counterparts. These mandatory dress codes often include requirements such as wearing skirts, cropped or low cut tops, high heels or a certain level of makeup. These policies distinguish female staff in an inappropriate manner, and pose difficulties from a health and safety perspective. Mandatory uniform policies should be based on the unique requirements of the job, not stereotypes.

The OHRC’s position states that these kind of sexualized dress codes, whether formal policy or informal practice, “contribute to an unwelcome and discriminatory employment environment for women.” The OHRC explains that these types of sex-based dress codes make women more vulnerable to sexual harassment not only from customers, but other staff and management. The OHRC found in a previous policy paper that women in service staff roles including bartenders and wait staff experience high rates of sexual harassment. In Ontario, employers have a duty under the Human Rights Code to remove barriers for women to full and equal participation in employment and to take steps to prevent sexual harassment in the workplace.

With regard to dress codes and uniform policies, 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 in question. Where this cannot be shown, these dress codes will be discriminatory.

Some businesses in the industry have already announced changes to their dress codes as a result of the OHRC policy paper. For example, female servers will now be offered the choice of wearing pants or a skirt as opposed to the special permission that was previously required to wear pants as opposed to a skirt. The policy paper emphasizes that “when setting out dress codes to meet business needs, employers should not rely on stereotypes or sexist ideas of how men or women should look.” Employers should contemplate a range of clothing options that can include everyone in a flexible manner and employees should be able to choose from these clothing options without pressure or coercion.