No Adverse Impact - Neutral

An employer is allowed to require a dress code such as one requiring a certain standard of professional attire as long as it is neutral in scope and has no adverse impact on any particular group based on a protected ground.¹

Conflict with Religious Principles

To be offensive an employer’s dress code must be either a rule which has a direct impact on the applicant, such as “no hijabs are allowed” or one which is neutral on its fact but creates a conflict with a religious observance, such as “no head covering allowed”.²

To establish a dress code, the employer must show that it is a requirement that it is rationally connected to the nature of the work, that is one adopted in good faith and that it was one that was reasonably necessary as it could not be accommodated to meet the religious needs of the employee without undue hardship. ³

The applicant must first show that the dress code has had an adverse effect upon him due to his creed.⁴

The decision maker must then determine if it is a mandate of the religion that requires its adherents to wear a particular form of head covering or other dress code. It may, at times, be acceptable to wear a form of head covering, for example, that meets the employer’s dress code and not impact upon the employee’s religious beliefs. ⁵

Sexually Revealing

A dress code which was mandated for a female waitress who objected to the tight fitting proportions while she was pregnant was found to a gender based violation resulting in a compensatory award of $17,000. ⁶

The traditional argument with respect to revealing dress codes imposed typically on female servers or similarly employed, usually in the hospitality industry, was whether the dress code was one uniformly applied to both genders and whether such a distinction may be a human rights violation. ⁷

A subordinate argument, sometimes connected to the gender based dress code, is one which goes directly to the essence of the issue, namely is the employer creating and using the sexual appeal of the servers to sell its wares and if so, is it actionable as a human rights complaint? ⁸

Yet another question may be whether the dress code is a violation of religious freedom, given a religion which sets restrictions on exposing certain parts of the human anatomy.

An early Ontario case considered a complaint against the employer disco bar due to the alleged sexually revealing nature of the apparel required by the female waitresses. The argument was based on the apparent distinction between male and female dress code, one which did not require the males to dress in such an alleged provocative fashion. ⁹

This submission failed before the Board of Inquiry and also in the subsequent judicial review. There were fatal findings of fact made at the Board level against the complainants, one of which was that the required manner of dress, referred to as a “uniform” was not unduly revealing or risqué and was not so “immodest” or “sexist” as to “transform the waitresses into entertainers” and that the female employees had not been exposed to sexually harassing behaviours from the patrons of the restaurant to the wearing of the uniform.

The Divisional Court, however, held that the Board erred in its determination of the nature of test to be applied in an argument of discrimination based on sex, that is, sex in the sense of gender discrimination.

The Board decision, based on adverse treatment due to gender, saw the test as being the following:

1. Whether males and females perform the same or roughly similar work for the employer;
2. Did the employer has impose a requirement on employees of one sex which is clearly more burdensome or exploitative than the requirement imposed on employees of the other sex;
3. Did such a requirement in question lack justification in "commonly accepted social norms";
4. Was the requirement proven by the employer to be reasonably related to the employer's needs.

The majority decision of the Divisional Court noted that there may also be circumstances due to gender, in which the “uniform” of the females was one which had no relationship to the job, except the sexual connotation, in which case there may be adverse treatment due to gender by subjecting the female worker to sexual harassment and rude comments due to such sexually provocative manner of presentation.

These words open the door for a complaint based on the requirement of a dress code which likely exposes a female worker to sexual exploitation.

The Divisional Court decision continued to state that “normal social norms” would be an appropriate test, this again being stated in the context of gender discrimination, referencing a context where female employees were required to wear clearly identifiable uniforms and males were not.

White J., who dissented, stated that the Code will not allow the “accentuation of an employee’s sexuality”. This is the preferred view today of the Ontario Human Rights Commission and indeed of any rational observer. In his dissent, he stated:

It is my opinion that the Ontario Human Rights Code does preclude the unequal application of a uniform requirement to different groups of employees based upon their gender and precludes the accentuation of an employee's sexuality.

There have been few cases dealing with this issue over the years, whether the plea is based on gender discrimination or any other argument. The submission based on gender discrimination, as was made in this case, did allow the real issue to seep through, one which is really sexual exploitation and has nothing to do in reality with differing standards between genders. ¹⁰

Would such a dress code be acceptable if it exposed both genders alike to sexual exploitation – clearly that would be an absurd result. The real question should be simply whether the dress code exposes the person to sexual exploitation or more fundamentally, as said by White J. in this dissent, the dress requirement should “preclude the accentuation of an employee’s sexuality”.

The 2010 decision of the British Columbia Human Rights Tribunal ¹¹ addressed these issues in on a motion to dismiss, one which was based on the allegations made in the complaint without affirmative evidence from either party, and hence similar to “no reasonable cause of action” in the civil world.

The complainant alleged that she was required to wear high-heeled sleek shoes, miniskirts, shirts showing cleavage and hair and make-up done with “class and sex appeal”. The training manual of the employer, known as “The Shark Club”, also stated that it preferred the female servers wear their hair down.

In rejecting the motion to dismiss, the Tribunal did use the usual gender biased differing treatment analysis and concluded sexually-based dress codes could in law be adverse treatment due to gender. It also referred back to the seminal decision of the Supreme Court in Janzen v Platy Enterprizes, which was a novel approach.

The Tribunal creatively used the Supreme Court of Canada decision to determine that “sexual harassment is sex discrimination”, that is based on a gender difference. That concept provides a much more logical argument to arrive at the real issue, namely, is the employer using the sexual attractiveness, coupled with its dress code, to exploit these women for its commercial purposes. ¹² The motion to dismiss failed.

A further argument could be made based on religious beliefs which do not permit the employee wearing revealing clothing.

It is odd that there is an absence of case law on this subject. Perhaps this will change. It should. (see also the well written review of this issue)

Some establishments appear to be reacting to this concern, as noted here.