Employers are entitled to mandate dress codes in the workplace, and even to discipline employees who refuse to comply. But a workplace dress code is a delicate matter requiring employers to exercise care when implementing it: one size does not fit all and employers should be willing to make alterations where they are warranted.

To help you assess or avoid discriminatory workplace dress codes, take our workplace dress code test to see how you measure up then check out our tips to help you size-up your dress code.

WORKPLACE DRESS CODES TEST

Try your hand on these 10 sample workplace dress code requirements and see how your answers measure up (but be aware that these are based on a non-unionized environment; in a unionized environment, a dress code might have to meet other requirements in addition to compliance with human rights legislation).

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WORKPLACE DRESS CODE TIPS

Dress code issues usually crop up when the dress code conflicts with an employee’s right to be free from discrimination under human rights legislation, so getting a base understanding of employers’ human rights obligations under your belt is important when sizing-up a workplace dress code. Human rights legislation prohibits employers from discriminating against employees on certain personal characteristics listed in the law. A complaining employee has to show that she has a characteristic that’s protected from discrimination, has experienced a direct or indirect adverse impact as the result of a workplace requirement, and the protected characteristic was a factor in that adverse impact. If she does, the employer then must show that the requirement is a bona fide occupational requirement and it has accommodated the employee to the point of undue hardship. If it can’t, there is discrimination.

Protected “Grounds”. The personal characteristics (sometimes called grounds) that human rights legislation protects varies depending on the applicable legislation (which province or territory or the federal legislation), but they are generally pretty similar. Dress codes tend to most frequently conflict with the protected personal characteristics of one or some combination of these (depending on the wording of the applicable legislation):

• Sex (which includes gender and pregnancy), sexual orientation (if the legislation doesn’t specifically include this ground, it will likely fall under “sex”) and/or sexual or gender identity/expression.
• Religion, race, creed, ethnicity and/or place of origin.

Direct & Indirect Discrimination. Direct discrimination is generally easy to identify; no women, for example. Indirect discrimination, often referred to as “adverse effect” discrimination, is often more difficult to identify and reflects that the focus of anti-discrimination law is on the effect rather than the intention to discriminate. This requires the employer to really think about how a workplace requirement (whether a rule, policy or practice or how one is being applied) might impact a variety of employees in ways that aren’t so obvious. For example, a rule that all employees must wear a hat as part of uniform seems fine on its face, but it has an adverse effect on employees whose religion requires them to wear, for example, a hijab.

One – not the – factor. The employee only has to show that the protected characteristic was one factor in the adverse effect – not that it was the only factor.

BFOR. If the employee proves a policy or practice is discriminatory, the employer will have to demonstrate that the workplace requirement is a “bona fide occupational requirement” (BFOR) (sometimes called a “bona fide occupational qualification”, “BFOQ” or a “genuine occupational requirement”) and that it met its duty to accommodate the employee to the point of undue hardship. A BFOR is, essentially, a requirement that’s legitimately connected to the job. In the context of dress codes, health and/or safety is the most frequent BFOR rationale that comes up.

Duty to Accommodate. The duty to accommodate is a legal duty to offset the discriminatory impact of a workplace requirement by eliminating, revising or adjusting it; employers are under this duty whether or not the legislation expressly refers to it.  It’s key that employers individually assess and manage each employee’s unique circumstances, and identify and assess (carefully, thoroughly, methodically and with hard evidence) accommodation options. The employer’s duty to accommodate the employee does end, but only at the point of “undue” – not any – “hardship”. The threshold is high. The main factors relevant to quantifying the level of hardship typically include cost relative to the employer’s size, disruption of a collective agreement, morale of other employees, the interchangeability of the workforce, the adaptability of facilities and the existence and magnitude of any safety risks and who bears them. Safety and health hazards is the one that most frequently comes up when dealing with dress codes; the most common examples are religious requirements to wear facial hair, head pieces (especially where a hardhat is mandated) or loose clothing (for example, a hijab) or a ceremonial dagger (or kirpan). Even in these cases, though, the employer can’t just assume a dress code requirement is automatically a BFOR: it must still specifically identify the issue and justify it as a BFOR and meet its duty to accommodate the employee to the point of undue hardship. For example, some human rights tribunals have decided that prohibiting Sikh students to wear a kirpan in school is discriminatory (see Multani v. Commission scolaire Marguerite-Bourgeoys); the outcome would likely be the same for a Sikh employee, though the specific facts, particularly the nature of the workplace and/or job, will play a role in the analysis. Similarly, requiring a Sikh employee to remove his turban and wear a hardhat was discriminatory in one case, though again the specific factual matrix will be key (see Loombpa v. Home Depot Canada, though there’s no reported decision on whether the requirement was a BFOR, so the employer and employee likely reached some agreement on that issue).

Discriminatory Dress Codes. Even though workplace dress codes are a bit of a minefield, there aren’t a large number of human rights commission or court cases about them. As the BC Human Rights Clinic and the Ontario Human Rights Commission commented to the CBC in March 2016, this doesn’t necessarily mean there aren’t a large number of discriminatory dress codes out there; it may just mean that most employees they affect simply quit their jobs rather than complain, which isn’t all that surprising considering that many of the dress code issues come up in the context of young women in the bar and restaurant sector. In recognition of this issue, on March 8, 2016 (International Womens’ Day), the Ontario Human Rights Commission released its policy position on “Sexualized Workplace Dress Codes That Discriminate”, calling for an end to the practice. The policy position and related Dress Code FAQs add to the Commission’s already fulsome set of website resources on workplace dress codes (for example, see Human Rights At Work, 3^rd ed., IV, 7(c)(ii) “Pay, benefits, dress codes and other issues” and 8(e)(vi) “Dress Codes and Accommodation Requests”).

Workplace Dress Code Tips. It’s preferable for an employer to get its dress code policy right than to get into a dispute over it and risk the downsides of a human rights complaint against it, including the costs to defend it and the reputational harm that could result. Here are three tips to help you size-up your dress code.

• Review existing policies with a critical eye. If you have a dress code, review it carefully, honestly and critically. Think about the employee groups (women, pregnant women, men, transsexual, transgender, various religious groups, and so on) it affects on its face and how, and also those on which it has an adverse effect. If you can identify problems, change the policy to address them. If you don’t identify a problem, you still need to be prepared to change the policy or try to make adjustments to accommodate individual or groups of employees if a problem does come up later.
• Balance flexibility and precision. It’s helpful – and in some cases, necessary – to be flexible. Offer all employees, without specifying gender, a range of dress options when it’s possible; for example, allow a choice of pants, skirts or shorts. And if an employee raises a valid concern about a dress code requirement, remain flexible enough to either change the requirement or make adjustments to accommodate individual or groups of employees if warranted. At the same time, include a degree of precision in spelling out what employees can – and can’t – wear for the benefit of both those following and those enforcing the code. So if you allow “casual attire” or require “appropriate business attire”, give examples of what is and what is not acceptable so it’s clear to both employees and the supervisors or managers enforcing the code what is and is not compliant with it. And when coming up with those examples, remember to think hard about how the prohibited ones might affect groups of employees.
• Keep an open mind. If an employee complains or criticizes a dress code requirement, listen with an open mind and think hard about whether the complaint or criticism is valid: does the dress code requirement have an impact that wasn’t obvious on its face, but is adverse in practice? Is the requirement really – reasonably and genuinely – connected to the job in a tangible sense? Is there a way to change it or modify it to address the issue the employee(s) has raised? And once you’ve listened and thought hard about it, act accordingly. And if it’s a grey area or you’re still not sure … call us.

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Please contact your McInnes Cooper lawyer or any member of our Labour and Employment Law Team to discuss this topic or any other legal issue.

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