Sexual and Gender-Based Dress Codes in Ontario’s Restaurants

On March 8, 2017 –International Women’s Day– the Ontario Human Rights Commission released Inquiry Report on Sexual and Gender-Based Dress Codes in Ontario’s Restaurants. This report outlined findings from an inquiry into dress codes at various Ontario restaurants, as well as commitments made by a number of Ontario restaurant chains to put an end to discriminatory dress codes for their staff—particularly female workers—and create more inclusive workplaces.

The impetus for the inquiry was the requirement of some Ontario restaurants that its female employees wear a specific uniform at work –usually highly sexualized clothing such as short skirts, low-cut tops and high heels– without imposing a dress code on male employees.

The result is that dress codes based on gender, a protected ground under the Ontario Human Rights Code, will no longer be tolerated, and employers with discriminatory dress codes expose themselves to liability.

Ontario’s restaurants employ many women, often young, vulnerable women who are unaware of or unable to assert their rights. Moreover, the sexualized clothing that female employees are required to wear normalizes and perpetuates the sexual harassment already rampant in restaurants and bars.

The inquiry revealed that many workers are wary of objecting to these dress codes or complaining about sexual harassment, fearing reprisals such as losing their job or not being hired. The report stated that employers are often unresponsive to or dismissive of complaints that are made, condoning a discriminatory workplace.

The OHRC report emphasized that organizations can have uniform policies for “legitimate business interests”, such as ensuring a professional image, addressing health and safety-related concerns, and meeting their organizational goals. However, the policies and requirements must comply with the Code. Employers must take reasonable steps to prevent and address harassment and discrimination in their workplaces, and that includes not requiring sexual or gender-stereotypical attire. Moreover, employers that fail to prevent sexual harassment and discrimination, appropriately respond to staff complaints, or accommodate employees up to the point of undue hardship, are effectively contributing to a discriminatory work environment.

The report is consistent with Bill 132, Ontario’s amended Occupational Health and Safety Act, which recently included sexual harassment in the definition of workplace harassment and created new obligations to address sexual harassment in the workplace.

Employers must have clear, comprehensive and inclusive policies, processes to address complaints about dress codes, sexual harassment, and other discrimination, and accommodation processes. The OHRC has developed tools that employers can use to comply with its policy position and remove discriminatory barriers, such as those created by sexual dress codes, even preparing a checklist for employers to ensure that their dress codes comply with the Code.

By releasing this report, the OHRC has taken an important step in addressing the specific challenges faced by women in the workplace, and has sent a firm message that discriminatory dress codes and sexual harassment will not be tolerated.

Lessons for Employees

Employees should not be hesitant to object to dress codes that violate the Human Rights Code. Nor should employees be hesitant to complain about sexual harassment. Advice from an experienced Employment Lawyer can be helpful in guiding an employee through this process to ensure that the employer is not unresponsive or dismissive of the complaint being made, and that the employee does not lose their job or fail to be hired as form of reprisal.

Lessons for Employers

Employers should review their dress code policies, especially for women, to ensure that the dress codes do not violate the Human Rights Code and that a discriminatory work environment is not being contributed to. An experienced Employment Lawyer can advise as to which dress code policies, which must be for “legitimate business interests” do not violate the Code. Employers are wise to provide a strong message to their employees that they will not tolerate discrimination and sexual harassment.

Minken Employment Lawyers is your source for expert advice and advocacy on today’s employment law issues. Whether you are an employer or an employee, we can help. Contact us to see how.

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