Dress codes or personal appearance policies are common in Canadian workplaces, particularly in client-facing or health and safety sensitive work environments. Dress code policies can touch on many different aspects of an employee’s appearance, including attire, the visibility of piercing and tattoos, and personal grooming habits. Whether an employer can legitimately enforce these policies will depend on a number of factors, one of which is whether the policy is discriminatory on religious, sexual or other grounds. Employers who intend to implement a dress code policy should consider whether the rules they intend to put in place are discriminatory.
The Statutory Framework
Employers cannot implement dress codes or personal appearance policies which discriminate based on one of the protected grounds outlined in the applicable human rights legislation – in Ontario, the Human Rights Code (“Code”). Even if the policy appears neutral, it may unintentionally impact a Code-protected group of individuals. For example, a policy that requires all men to be clean shaven could unintentionally discriminate against men who have facial hair for religious reasons. Many dress code policies include language that allows for exceptions to the general rules to accommodate for these types of needs. Dress code policies that avoid discriminatory provisions or offer accommodations for protected employees are more likely to withstand judicial scrutiny.
Personal Grooming Rules
The Ontario Human Rights Tribunal (“HRTO”) recently commented on an employer’s “clean-shave” policy in Browne v Sudbury Integrated Nickel Operations (“Browne”). In Browne, the HRTO found that a “clean-shave” policy, which prohibited certain styles of facial hair, was not discriminatory based on sex or gender identity. This policy required employees who needed to wear respirator masks for specific duties to be clean shaven. The Tribunal held that having a beard or facial hair is a matter of personal style and is not a matter of sufficient social significance to warrant protection under the Code, absent any connection to another protected ground.
Sexualized and Gender Specific Dress Code Policies
Employers can often go amiss when implementing dress codes with sexualized or gender specific rules. For example, in McKenna vs. Local Heroes, Stittsville, the HRTO awarded a pregnant employee compensation for lost income and damages after her employer stopped scheduling her for shifts and gradually terminated her employment for refusing to wear a tight fitting uniform which the employer’s new dress code policy required her to wear. The Ontario Human Rights Commission recently published a policy position on sexualized and gender-specific dress codes, reiterating that dress code requirements that adversely impact employees based on sex violate human rights laws.
Employers can benefit from implementing dress code policies meant to uphold a certain workplace image and/or ensure the safety of employees, but should ensure that the policies implemented provide some flexibility where possible to avoid running afoul of the Code. If flexibility is not practical, then the policies should provide exceptions for Code protected grounds.
The foregoing is for informational purposes only, and should in no way be relied upon as legal advice. For legal advice tailored to your circumstances and business, please contact any of SOM LLP’s lawyer’s by email or telephone.