Recently, Caitlin Bernier made headlines and garnered social media attention when she filed a human rights complaint against a Honda dealership in Edmonton. The basis of her claim: she was told that her long-sleeve crew neck and dress pants violated the company dress code and that the shirt was see-through and that it made her male colleagues uncomfortable. The employer denied any discrimination.
Ms. Bernier told CBC News that she had worn the same outfit to her job interview earlier that month and was advised by her employer that it fit the dealership’s expectations of business-casual wear. However, prior to being dismissed, a female colleague told her to cover up with a sweater or go home. Shortly thereafter, a Human Resources representative (HR) allegedly said “her shirt’s fine, it’s not see-through at all”. On that same day, she was fired due to her violation of the dress code.
Another incident of a discriminatory dress code in a male-dominated industry surfaced in the news this week: following an incident of sexual harassment, female staff and passengers with the international MOSAiC expedition were allegedly told not to wear tight-fitting clothing, which perpetuates the troubling notion that if they had worn the “appropriate” clothing, the harassment would have been prevented. You can read more about this story here.
The issue of discriminatory dress codes is not new; however, it has been getting more attention in recent years. In 2017, I wrote about discriminatory dress codes here and here. I also spoke about this topic on various platforms, including CBC and Radio Canada International, and conducted a webinar for Canadian HR Reporter to inform employers of their obligations.
What Employers and Employees Need to Know
Employers have the right to implement uniform policies for staff that are in line with their corporate brand, ensure a professional image, address health and safety-related concerns, and meet their organizational goals. These are recognized as “legitimate business interests.” However, the policies and requirements must comply with the applicable human rights legislation. For instance, if an employer believes that female employees cannot wear tight-fitting clothing because it will make male employees/customers feel uncomfortable, it cannot simply turn a blind eye to its discriminatory effects.
Discriminatory dress codes reinforce stereotypical and sexist notions about females, and can lead to discrimination. In male-dominated industries such as car dealerships and the polar sciences, discriminatory dress codes may be “normalized” and can perpetuate systemic sexism and harassment. This is the reality of certain industries, and consequently, many workers are afraid to object to dress codes or complain about sexual harassment and other discrimination due to fear of reprisal.
Employers are obligated to take reasonable steps to prevent and address harassment and discrimination in the workplace, such as by ensuring their dress codes are not discriminatory. Employers that fail to prevent sexual harassment and discrimination, appropriately respond to and handle staff complaints, or accommodate employees up to the point of undue hardship, are viewed as contributing to a discriminatory work environment.
Best Practices: Policy and Process
Employers must recognize that different employees may have different needs based on the various protected grounds under the applicable human rights legislation, and are affected in different ways by dress codes. Accordingly, it is crucial to have clear, comprehensive and inclusive policies; processes to address complaints about dress codes, sexual harassment, and other discrimination; and accommodation processes.
Employers would be well-advised to adopt the following practice tips:
In Ontario, the Ontario Human Rights Commission (OHRC) has developed tools that employers can use to comply with its policy position and remove discriminatory barriers, such as those created by gender-specific dress codes.
Employers must ensure their workplaces are free of discrimination and harassment; otherwise, they expose themselves to liability for violating employees’ human rights, bad publicity, the risk that they will lose employees without the ability to replace them with quality individuals, as well as decreased employee productivity, low morale, and increased absenteeism. Until employers take the necessary proactive steps to do so, the sexualization and policing of female bodies in the workplace is likely to continue, especially in male dominated industries where systemic sexism is rampant.
If you are an employer without a proper dress code in place or need to have your current one reviewed, we would be happy to assist you draft and implement such a policy in order to ensure that you comply with your legal obligations while maximizing your rights. If you are an employee who has been subjected to a discriminatory dress code or otherwise faced discrimination or harassment in the workplace, we are here to help you as well.