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Keeping abreast of discriminatory dress codes

dress codesIronically, on the day after Hugh Hefner dies, I am writing about breasts – specifically, women’s breasts. And even though Hefner’s empire made gazillions of dollars exposing women’s breasts to the masses, claimed by Hefner as “liberating” sexuality in North America, there remains a puritanical discomfort with women’s breasts in public, evident in numerous cases of discrimination against mothers breastfeeding in public and high school dress codes prohibiting bra straps from showing. In September the issue spilled over into the workplace.

A northern Ontario East Side Mario’s made the news recently when a female employee complained that she was treated in a discriminatory manner when a manager told her that she had to wear a bra under her work uniform which consisted of a black t-shirt. Apparently the company’s dress code said nothing about undergarments and after the complaint went public the owner of the restaurant and manager have declared that the employee is not, after all, required to wear a bra.

Bras are falling out of favour with millennials who are embracing a fourth wave of feminism, and much like the second wave in the 60s, and the third wave in the 80s, women’s social and cultural empowerment goes hand in hand with a rejection of corporate fetishization of their bodies for profit. L Brands, for example, the parent company of Victoria’s Secret, is trading at just over half its share price from December 2016, partly due to the fact that customers have eschewed expensive lingerie which makes breasts look like cupcakes for more comfortable, practical and less expensive bralettes and sports bras, or going au naturel.

But does an employer get a say? Not many provincial or territorial human rights commissions have specifically weighed in on the subject of dress codes, however Alberta, New Brunswick and Ontario have published policies and guidelines which provide employers with some direction:

  • Alberta’s Human Rights Commission’s Information Sheet on “Appearance and dress codes” states that “Appearance or grooming standards or dress codes should be reasonable, not arbitrary, and in keeping with the dress standards of the community,” and “…employers have the right to establish dress code standards necessary for the safe and effective conduct of the business…[and must] ensure that the standard does not discriminate against employees based on protected grounds in the [Act] and is within societal norms.” (Good luck defining that one!)
  • New Brunswick Human Rights Commission’s “Guideline on Gender Identity or Expression” says it would be discriminatory to “Have a dress code that requires all employees to wear clothes or uniforms that align with their biological sex.”
  • Ontario Human Rights Commission has developed the more comprehensive “OHRC policy position on sexualized and gender-specific dress codes” which states:

    “Female employees should not be expected to meet more difficult requirements than male employees, and they should not be expected to dress in a sexualized way to attract clients. An employer should be prepared to prove that any sex-based differences in the dress code are legitimately linked to the requirements of the job.”

    “When setting dress codes to meet business needs, employers should not rely on stereotypes or sexist ideas of how men and women should look.”

    “An employer should be prepared to prove that any sex-linked differences in the dress code are bona fide occupational requirements.”

    It also offers examples of what would be considered gendered or sexualized dress code requirements, including:

    “Telling women staff what underwear they should or can’t wear: such as being told not to wear a bra, or to wear thong underwear.” (Emphasis added.)

From the above policy positions it is likely that East Side Mario’s was on the wrong side of the OHRC in telling the employee that she must wear a bra under her uniform shirt, even if it was part of the written dress code, and wisely backtracked. The requirement to wear a bra would be a bona fide occupational requirement in few cases (although perhaps an establishment like a lingerie store could argue that.)

leftAs women reclaim their bodies in the fourth wave employers should develop or review their policies on Dress Codes, Accommodation on the Basis of Gender Identity and Gender Expression and Accommodation on the Basis of Breastfeeding and ensure that managers and employees are educated to recognize and prevent such discrimination. More on the above-noted topics appears in all editions of the Human Resources Policy Pro. Take a 30-day free trial here.

Michele Glassford

President and Managing Editor at DRH and Lawyer at MacKinnon Law Associates
Michele Glassford, is a lawyer, researcher and policy analyst with a background in employment and labour law.In addition to a part-time law practice in Stoney Creek, Ontario, Michele has worked in the field of labour adjustment for the Health Sector Training and Adjustment Program and has been a Researcher for the Canadian Broadcasting Corporation. Michele also holds the position of President and Managing Editor at D.R. Hancocks & Associates Inc., author of the Human Resources PolicyPros. Read more
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