On March 8, 2017, the Ontario Human Rights Commission (“OHRC”) reinforced International Women’s Day by releasing its report on sexualized and gender-based dress codes in Ontario restaurants. Officially titled “Not on the Menu: Inquiry report on sexualized and gender-based dress codes in Ontario’s restaurants”, the Report takes a stand against sexual discrimination in the workplace.
The Ontario Human Rights Code (the “Code”) protects individuals against discrimination and harassment in the workplace on the basis of numerous grounds. This means that an employee cannot be treated differently or harassed in the workplace on the basis of any of the grounds protected by the Code. These protected grounds include sex, gender identity, sexual orientation, and gender expression, among others.
In recent years, with more and more restaurant employees refusing to wear gender-specific or sex-based uniforms, the topic of restaurant dress codes, as well as sexual harassment, has received increased coverage in the media. These issues have also received more attention in the human rights and employment law landscape as the Ontario Human Rights Tribunal began to receive complaints on this specific basis. For these reasons, the OHRC decided to take action.
In March 2016, the OHRC released its Policy position on sexualized and gender-specific dress codes. On July 8, 2016, the OHRC launched an inquiry into dress codes in restaurants. It contacted many Ontario restaurants to provide them with checklists to ensure that their dress codes complied with the Code. Some of the restaurants contacted include Bier Markt, East Side Mario’s, Kelsey’s, Montana’s, Baton Rouge, JOEY, The Keg, Moxie’s, and Jack Astor’s. The OHRC requested that the restaurants commit to complying with the checklists by December 2016. It also asked for the restaurants’ feedback on the issue of dress codes. Overall, the response from the participating restaurants was encouraging, with many employers amending their dress codes in light of the OHRC checklist.
The OHRC Report provides much needed guidance on what exactly constitutes a sexualized or gender-based dress code.
Some examples of gender-based or sexualized dress codes and/or expectations include:
- high heels or other shoe requirements for women only;
- women being prohibited from wearing pants;
- a requirement for women to wear makeup, nail polish, or jewelry;
- forcing employees to specifically request less revealing or sexualized dress code options;
- requiring women to wear short skirts, low-cut shirts, tight, or other revealing clothing; and
- pressuring employees to wear sexualized clothing in order to secure initial employment or more shifts or hours.
In its Report, the OHRC also offers numerous suggestions for employers to implement in order to avoid human rights violations and possible litigation.
The OHRC Report does not change the current state of the law in Ontario, as sexualized and gender-based dress codes are already prohibited, but it does serve to further enforce it and clarify the OHRC’s position, which ultimately assists in discouraging this type of discrimination in Ontario workplaces.
The Report serves as a reminder that employers in the restaurant industry (as well as other industries) should be careful when creating and implementing workplace dress codes. Employers may implement dress codes, but they cannot violate the Ontario Human Rights Code.
An employee who is being forced to dress in a way that is based on his or her gender or one that differs from the requirements for the opposite gender, or who is being treated differently in the workplace due to gender or any other ground protected by the Ontario Human Rights Code, may have a valid complaint against the employer.
If you would like to discuss workplace dress codes, discrimination in the workplace, or any other human rights or employment matter, please do not hesitate to contact Samara Belitzky at 613-234-2500.
The above-noted content is not intended to be legal advice and should not be taken as such. Professional legal advice should be sought to address specific events and situations.
