Are Restaurant Dress Codes Illegal or a Job Requirement?

Mar 17, 2016

Right on time for International Women’s Day, the Ontario Human Rights Commission (OHRC) released its policy position on gender-specific dress codes. The policy is particularly relevant to the hospitality industry, as sexualized dress codes are often found in places such as restaurants and bars. The release of this policy, coupled with the passing into law of provisions that expand the Occupational Health and Safety Act’s (OHSA) definition of “workplace harassment” to include “workplace sexual harassment”, should have many employers rethinking their dress code.

What aspects of a dress code are problematic?

The OHRC’s policy position is not that employers cannot have and enforce dress codes. Rather, employers can have dress codes, as long as they do not violate the Ontario Human Rights Code (the “Code”). For example, dress codes can be necessary to ensure employees in customer service look presentable. A dress code becomes problematic when it is based on stereotypes or sexist ideas of how a woman or man should look. Therefore, requiring all employees to wear black, clean clothes, and to be properly groomed does not run afoul of the Code. Expecting women to wear high heels, short skirts, tight clothing or low-cut tops, is a different story. For an employer to defend a dress code, they must prove that any sex-based difference in the dress code is legitimately linked to the requirements of the job.

Why are these dress codes problematic?

In addition to reinforcing sexist stereotypes, sexualized dress codes may negatively impact a particular gender by imposing more stringent requirements on female employees than male employees. For example, requiring women to wear high heels for long shifts while their male counterparts wear more comfortable shoes places a burden on female employees. Another discriminatory practice could be punishing a female employee for not abiding with a sexualized dress code by sending her home or reducing her shifts.

Sexualized dress codes may trigger discrimination on other prohibited grounds under the Code such as race, religion and gender identity and expression. The OHRC encouraged employers to design flexible dress codes, with a range of options so that employees can choose without feeling pressured or excluded.

Finally, the OHRC expressed concern that sexualized dress codes can make a female employee more vulnerable to unwanted sexual attention, sexual harassment and sexual violence from both customers and co-workers. Given the anticipated changes to OHSA, reviewing existing dress codes may help employers meet new obligations to prevent and protect against sexual harassment.

How does this policy affect me?

The OHRC’s policy position, along with the upcoming changes to OHSA, shows that gender discrimination and sexual harassment is becoming increasingly important. Employers should be reconsidering current practices and policies, as their obligations to employees in this regard are increasing. As the Executive Director of the Human Rights Legal Support Centre said, “Excellent customer service doesn’t have a cup size.” If your employer suggests otherwise, you should consult a lawyer to discuss your legal rights.

If you have any questions about your legal rights in the workplace, one of our lawyers would be happy to meet with you. Please call 647-204-8107 or email [email protected].

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