Recently, I posted a discussion topic in The Canadian HR Law Group on LinkedIn, which I moderate. It turned out to be one of a few recent topics that generated substantial interest and comment. As a result, I thought I would revisit the issue here, and I hope to hear from all of the First Reference readers.
The question itself is quite simple: Should employers be entitled to require that their employees have a certain look? What I found interesting was that in the responses, issues were raised regarding human rights, health and safety, and basic employee relations. The discussion became a very good example of how one issue can be impacted by a number of laws.
I am also the Director of HR Law for HR Professionals, a course offered by Osgoode Professional Development. We first ran this course in the spring of 2011, and it focussed on a number of pieces of legislation that impact human resources. During and after the course, participants commented that when they had an issued to deal with at work, they often focussed on the most obvious legal issue, but did not always consider other laws that may potentially impact their decision. They found that the course was helpful and in reminding them to consider all potential legal issues when making decisions. The “look” issue is perhaps a good example of that. If the question were asked in the context of a safety concern, those involved may focus on health and safety legislation. However, they may entirely ignore potential human rights issues. Those in human resources, as well as lawyers, must learn to look beyond the narrow focus of a question that is presented to them in order to ensure that all potential issues are considered.
As we all know, there are a number of reasons why employers may regulate what their employees wear while at work. Some of these are clearly safety considerations. Workers on a constructions site should not be wearing Crocs sandals, for example. In other cases, it is simply a matter of appearance. Law firms do not want their staff walking around, and interacting with clients, wearing t-shirts with offensive slogans, ripped jeans or excessively short skirts. These are not safety considerations, but more a matter of image.
Initially, when I posed this question, I was focussed on the image side of the discussion. I suspect that most will agree that it is appropriate to impose dress codes in order to ensure that staff are “appropriately attired”. However, we may disagree on the definition of “appropriately attired”. Furthermore, human rights considerations can easily come into play. For example, a simple dress code may provide that staff are not to wear hats or head coverings; however, this can impact upon an employee’s religious obligations.
What I thought was a more interesting aspect of this discussion is the reality that the “look” required by some employers will, intentionally or unintentionally, mean that some people cannot be hired. We are all aware of retail stores like The Gap (and I do not mean to single them out in any way) which seem to have a very specific look for their salespeople. At the same time, restaurants like Hooters and, more recently, Earls, also have a very specific look for their wait staff. While some may find the Hooters’ requirements more offensive than those at The Gap, they both raise potential concerns. Any time a certain “look” means that only people of certain backgrounds, shapes or sizes can apply, it discriminates against others.
In most circumstances, my view is that employers should not attempt to require a certain “look”. They can require appropriate attire, as long as that is defined reasonably and as long as religious obligations are accommodated. However, it is too easy to discriminate by insisting that everyone look the same.
One exception to this rule that I have, personally, found to be compelling is where there is a bona fide occupational requirement. The example given to me, which, as a father of two young children, I can certainly understand, is Disney World. As a client once said to me, how can you insist that Disney hire, for example, a black man to play the role of Cinderella in the parks? Obviously, they were being somewhat facetious. However, I do think they make a valid point. The Disney experience is based upon a suspension of disbelief. It is crucial that visitors, and particularly children, can “believe” that they are meeting Mickey Mouse, Cinderella and the other characters. Particularly for the “face characters” (the ones that are not in a costume which covers their face), Disney does an amazing job of ensuring that the characters are consistent. My family has encountered Cinderella dozens of times, and each one has looked exactly the same.
As my children get older, I can already see them starting to question what is real and what is not. The fact that the characters are consistent allows them to believe for longer than they would if, for example, a particular character looked different every time they met. This, to me, is a compelling argument for insisting upon a certain look in a specific context. It does mean that Disney could only hire people of a certain background for all positions. The exception would apply to certain positions, or in this case, characters. These employees are essentially actors; I would think that the same theory should apply so that it would be acceptable to only consider black men to play the role of Barack Obama in a documentary.
I would welcome the comments of our readers regarding where they think the line should be drawn.
PS. I never thought I would reference both Disney and Hooters in an employment law blog!
Miller Thomson LLP
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