Effectively, there needs to be a reasonable and proved link between the dress code and the workplace.
For example, a bar/restaurant may find it difficult to justify requiring female servers to wear short, sleeveless dresses and boots or heels, especially if their counterpart male servers wear something more conservative. Certainly the Bier Markt in Toronto may be experiencing this now, while it responds to a complaint under the Human Rights Code for discrimination on the basis of sex related to its female server dress code.
There are not many cases in Ontario about this, but there are some.
Some examples:
a) a Hospital was not permitted to require employees to avoid wearing piercings and to cover tattoos in the workplace this policy was found not to address reasonable workplace concerns and was based on unsubstantiated assumptions and stereotypes; and
b) a policy prohibiting jeans and shorts in the workplace was held to be invalid it was not proved to negatively impact the employers reputation or image and, therefore, unjustifiably infringed the employees own choice of apparel in the workplace.
If a dress code can be demonstrated to relate to an employers health or safety policies in the workplace, it can be successfully imposed. If, for example, a piece of safety equipment is a legitimate and bona fide health and safety requirement, it can be reasonable for the employer to impose it example: a hard hat that had to be worn by a Sikh employee was held to be reasonable by the Supreme Court of Canada.
Generally, if a dress code or specific item is to be imposed, employers should give proper consideration to these questions and potential risk factors:
- Is the dress code reasonable and relates in a verifiable way to the nature of the work?
- Will the dress code adversely affect one type or group of employees, but not others?
- Will the imposition of a dress code result in a significant change to the employees workplace and the nature and circumstances of that employment? [If so, consider if the employee refuses to comply and claims a constructive dismissal, in which case the employee may be entitled to damages for reasonable notice and other damages)?
- Does the dress code potentially offend the Ontario or Canada Human Rights Code, keeping in mind the different types of discriminatory grounds such on the basis of sex, gender, sexual orientation, creed (religion)?
- Does the dress code potentially run afoul of health and safety requirements in the Occupational Health and Safety Act of Ontario and other applicable occupational health and safety regulations?
- If there is unionization, is the dress code consistent with the collective agreement?
- Is the dress code clearly defined and will it be consistently applied?
- Who will be responsible for the cost of the required dress it should likely be the employer?
- Should reasonable, advance notice of the dress code to employees be provided, both at the commencement of the employment relationship and/or when a dress code is being imposed during employment?
- Should the consequences of failing to adhere to the dress code be communicated to employees and, if so, when and how should that be done?
This WARDS PC BLAWG is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.
More information? We’re here to help – [email protected] www.wardlegal.ca
