Questions, concerns remain about company dress code policies

By Tony Poland, LegalMatters Staff • A recent workplace dismissal case that garnered media attention demonstrates that while discriminatory dress code issues are not new, some questions and concerns remain, says Toronto employment lawyer Ellen Low.

An Edmonton woman filed a human rights complaint against a car dealership, claiming she was fired for wearing clothes that supposedly violated the company dress code even though it was the same outfit she wore when she was hired, according to the CBC. The woman, who had only recently joined the dealership and was in the employee training program, says she was not even aware of a dress code policy.

“I just feel super discriminated against over this whole thing,” she told CBC. “I feel really wrongfully treated. I don’t deserve to lose my job because of a shirt.”

Low, principal of Ellen Low Employment Law, says there are several issues to consider in the incident.

‘Double standard’

“The main one is that they said she was allegedly in contravention of the dress code. If she is to be believed, she was wearing the same outfit when she was hired,” she tells LegalMattersCanada.ca. “It’s a double standard to say, ‘We like the way you look when we hired you, but we don’t want you looking like that for clients.’”

Low says she finds it “a bit surprising that we are still talking about discriminatory dress codes.”

“There’s something about the implementation that is not quite working out because we still have discriminatory dress codes that tend to reinforce either stereotypical or outright sexist conceptions about what females are supposed to look like. Clearly, there are still questions and concerns.”

According to the CBC, the woman was pulled aside by a female colleague and told the shirt was wearing was see-through and that she should cover up or go home. Instead, she met with an internal human resources representative who told her the shirt was not see-through.

The HR person allowed her to leave until the manager returned, according to the CBC report. She went home and about an hour later she received a call informing her she was fired for a dress code violation.

Equally enforced

The dealership denies the woman’s claim of discrimination, telling CBC its dress code is equally enforced and employees would not be dismissed for a single violation.

“From a human rights perspective it seems like it’s a discriminatory dress code. It is discriminatory against her based on the fact that she is female and that they told her to go home or cover up,” says Low. “Assuming that everything is true and that the shirt wasn’t see-through or wasn’t otherwise in violation. then they would have to rescind the allegation.

“She would receive a written disciplinary warning,” she adds.  “You certainly wouldn’t fire the person for a violation of the dress code.”

The Ontario Human Rights Commission (OHRC) has “a really clear position on sexualized and gender-specific dress codes,” Low says.

“It’s a pretty serious issue. As the commission sees it, sex-based dress codes tend to undermine a woman’s dignity and make them more vulnerable to sexual harassment. The policy deals with female employees forced to dress in a gender-specific or a sexualized way at work,” she says. “It cites examples of women having to wear high heels, a skirt, tight clothes, low-cut tops or makeup, plus having to have their hair styled in a certain way.”

Contrary to human rights code

Low says dress codes can be contrary to the OHRC for different reasons.

“What happens if a person with a mobility issue is required to wear a tight skirt at work? You now have two issues,” she says “One about the sexualized nature of the skirt but also because the person who has a mobility restriction likely can’t wear that tight skirt required for their job.”

Low says the only time such an example would not violate the OHRC would be if the employer can show “it is a bona fide job requirement to have that kind of particular outfit.”

• Do not make assumptions with managerial overtime pay
• Employees face ‘a whole new ball game’ working from home
• Know your rights under Ontario’s amended layoff regulations

“Let’s be clear, employers have the right to put uniform or dress code policies in place. If it is part of the corporate brand, for example, you might have to wear the car dealership’s T-shirt,” Low says. “But the challenge is that unless there’s some kind of legitimate business requirement, the human rights provisions would take issue if that dealership T-shirt is tight, low cut and possibly see-through for female staff while it is a standard-issue golf shirt for male employees.”

She says in the absence of a uniform, care must be taken to ensure dress code policies are not discriminatory.

 “Where we start to get concerned from an employment perspective is when the policy says you must be wearing high heels or you must be wearing skirts,” she says. “There is a human rights decision in Ontario where the tribunal found the employer’s dress code and expectations for female staff to wear skirts exclusively while men wore pants was discriminatory.”

‘Not relying on stereotypes’

Low says a good policy “tends to be non-specific, not relying on stereotypes or sexist ideas of how women are supposed to look in the workplace.”

She also says dismissal is too harsh for a single dress code violation.

“Effectively employers can terminate anyone, anytime for any reason but it’s not supposed to be discriminatory. One incident would not be tantamount to cause for termination. You would need to see some kind of progressive discipline concerning that issue,” Low says. “There needs to be the opportunity to improve upon that behaviour. Even then, there may not be just cause to terminate that employment.”

Her advice to employers who haven’t reviewed company rules in the past three to five years is to “take a critical look at your dress code policy.”

“It’s not a common issue but it certainly garners a lot of attention when it does come up and many of these stock dress codes that were in effect may not even be updated to include gender expression,” Low says. “It’s important to have those reviewed to make sure they are not offside with current jurisprudence.”