By Wendy Woloshyn.
(Originally published January 2016; updated October 2019.)
Does your organization have a dress code? If so, is it enforceable?
For the vast majority of modern workplaces, rules or policies about how employees are expected to dress aren’t necessary. In 2019, it’s generally understood that we should show up for work looking neat, presentable and industry-appropriate.
For some employers, however, concerns about branding, reputation, health and/or safety lead them to adopt explicit dress code policies relating to their employees’ dress and appearance. But are such policies legally permissible?
The answer is yes, with some exceptions – and the nature of those exceptions differs depending on whether or not your employees are unionized.
Unionized Employees – Is the Policy Reasonable?
For employers of unionized workplaces, the primary consideration is whether the dress code policy is reasonable. Put another way, an employer in a union context may only impose requirements for employee dress and appearance for legitimate business reasons, such as workplace health and safety, or the company’s image.
If a unionized employee challenges a workplace dress code policy, it will be up to a labour arbitrator to assess the reasonableness of the policy. In doing so, he or she will:
- balance the employer’s concerns against the employee’s rights (e.g. to self-expression), and
- determine whether the employer has provided sufficient evidence that its policy is necessary to accomplish its business purposes.
In 2013, an Ontario arbitrator was asked to consider the reasonableness of a hospital employer’s policy which required employees to cover up large tattoos and remove visible, excessive piercings while at work [see Re Ottawa Hospital and CUPE, Local 4000 (Dress Code Policy)].
The arbitrator concluded that the Ottawa hospital provided no evidence for its rationale that there was a link between health care outcomes and its rules on tattoos and piercings, and that it had attempted to fix a problem that did not exist. He went on to state:
Where no harm can be shown to either patients or employees or the hospital itself, the restrictions are an infringement of the employees’ right to present themselves as they see fit.
The arbitrator was further persuaded by the fact that the policy’s language was so vague as to create uncertainty and inconsistency in how it was applied. Ultimately, the hospital’s dress code policy was struck down on the basis that it was void and unenforceable.
Non-Unionized Employees – Is the Policy Discriminatory?
What Not to Wear
In a non-unionized setting, employers have more freedom when it comes to imposing policies regarding employee dress or appearance. The primary consideration in this context is human rights legislation: when adopting a workplace dress code, an employer may not discriminate against any employee on the basis of any protected ground (which includes race, colour, religion, age, sex, and gender identity or expression).
Keep in mind that, in some cases, even if a policy is not obviously discriminatory (e.g. by explicitly prohibiting the wearing of a hijab), it may still have that effect.
Take the example of the Ontario employer whose dress code policy required “business attire” at all times, such as “suits, dresses, skirts, dress pants, dress shoes, nylons/socks, blazers, dress shirts, turtle necks, and sweaters”. While the policy was not necessarily discriminatory on its face, the Ontario Human Rights Tribunal concluded that the policy discriminated against an employee who was Muslim and female because it had an adverse effect on her religious beliefs regarding modest clothing and head coverings:
[The employer’s arbitrary application of the dress code] constituted adverse-effects discrimination on the ground of creed against the applicant, whose religiously-conforming attire at times conflicted with the respondents’ dress code.
Among the remedies awarded to the employee complainant were $15,000 in damages for discrimination and injury to her dignity, feelings and self-respect, and an order that the employer hire a consultant to review its policies and practices.
An interesting note about our neighbours to the south: Title VII of the American 1964 Civil Rights Act protects against sex discrimination, but does not explicitly mention sexual orientation or gender identity. (As of 2019, only 20 US states and the District of Columbia have laws that explicitly prohibit discrimination on the basis of sexual orientation and gender identity.) In 2013, a Michigan funeral director was fired after disclosing that she was transgender and planned to follow the employer’s female dress code. Her claim that the funeral home discriminated against her on the basis of sex by firing her has made it to the US Supreme Court, who will hear her case and two others in October of 2019, and determine whether federal anti-employment discrimination law protects workers from being fired because they are transgender. Stay tuned!
What to Wear
Interestingly, an employer may open itself up to a human rights complaint not just for clothing it prohibits in its workplace, but also for clothing it requires its employees to wear.
In 2004, a female restaurant server filed a complaint with the BC Human Rights Tribunal after her employer required her to wear a bikini-top to an event at the nightclub where she worked. The employee server first asked if she could wear something over the bikini top (a request that was denied by her boss), then showed up at the event in an outfit that did not meet her employer’s requirements. As a result, her employer retaliated against her both during the event (by refusing to let her sell that night’s drink special), and afterwards by issuing two disciplinary letters against her and relegating her to a degrading and inferior job.
Ultimately, the Tribunal concluded that the dress code requirements were gender specific and that the employer discriminated against the employee server on the basis of sex and retaliated against her when she failed to conform to a discriminatory condition of employment. They awarded the employee damages for injury to dignity, feelings and self-respect in the amount of $3,000.
Implications for Employers
We encourage any employer who is interested in adopting a dress code policy to first consider your purpose and intention before committing anything to writing. Whether or not your workplace is unionized, your expectations for your employees when it comes to their appearance on the job should be clearly connected to the work they are doing and not reflect any prejudices or stereotypes.
Have questions about your workplace policies or practices? Contact us!
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