OHRC policy position on sexualized and gender-specific dress codes
Some Ontario employers require female employees to dress in a sexualized or gender-specific way at work, such as expecting women to wear high heels, short skirts, tight clothing or low-cut tops. These kinds of dress codes reinforce stereotypical and sexist notions about how women should look and may violate Ontario’s Human Rights Code.
Sexualized and gender-specific dress codes are all too common in some restaurants and bars, and can be found in other services. Whether in formal policy or informal practice, they contribute to an unwelcome and discriminatory employment environment for women. Female employees may face scrutiny to make sure they are abiding by the dress code, and may experience employment-related consequences for failing to dress or wear their hair, make-up or jewelry in a particular way. Employees may feel pressured to agree to sexualized dress requirements to get a job or because they fear losing tips, shifts, or even their jobs.
Employers can have dress codes, but only if they do not violate the Ontario Human Rights Code. Human rights decisions dating back to the 1980s have found that dress code requirements that create adverse impacts based on sex violate human rights laws.
Employers must make sure that any uniform or dress code policy does not undermine employees’ dignity and right to fully take part in the workplace because of Code grounds, such as sex (which includes pregnancy), race, gender identity, disability, gender expression and creed (religion). Dress codes may discriminate based on one or more Code grounds. They may also discriminate based on how Code grounds combine or intersect with each other. For example, a dress code that requires a woman with a mobility disability to wear a restrictive skirt, without exception, may discriminate based on the intersection between disability, sex and gender expression.
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. Where this cannot be shown, these dress codes will be discriminatory. For example, in one human rights case, in the absence of any justification by the employer, a tribunal found that the employer’s expectation for female staff to exclusively wear skirts, while allowing male staff to wear pants was discriminatory.
Sex-based dress codes undermine women’s dignity and may make them more vulnerable to sexual harassment from other staff, customers and management. The Ontario Human Rights Commission’s Policy on preventing sexual and gender-based harassment identifies that certain jobs – such as massage therapy, waitressing and bartending – are also occupations where women may be subjected to unwanted sexual behaviour. Tribunals have ruled on human rights claims in which female employees experienced unwelcome sexual behaviour while they were required to comply with gender-specific dress codes.
Employers have a duty under the Code to remove barriers to women’s full and equal participation in employment, take steps to prevent sexual harassment and respond to it quickly when it occurs. As part of the Government of Ontario’s 2015 action plan on sexual violence and harassment, changes to the Occupational Health and Safety Act strengthen employers’ obligations to prevent and respond to sexual harassment. Reviewing existing dress codes and removing discriminatory requirements may help employers meet these obligations.
When setting out dress codes to meet business needs, employers should not rely on stereotypes or sexist ideas of how men or women should look. They should think about a range of clothing options. Dress code policies need to be flexible and include everyone, regardless of their sex, gender identity, race, disability, gender expression or religious faith. Employees should be able to choose from this range of options without pressure or coercion. More information about designing non-discriminatory dress codes can be found in the OHRC’s publication, Human Rights at Work.
 McKenna v. Local Heroes Stittsville, 2013 HRTO 1117 (CanLII) [a woman’s shifts were cut after she expressed concern about wearing a new form-fitting uniform due to her visible pregnancy];
Doherty and Meehan v. Lodger's International Ltd. (1981), 3 C.H.R.R. D/628 (N.B. Bd.Inq.) [women required to wear tuxedo-style jacket and shorts that accented their female sexuality]; Ballantyne v. Molly'N'Me Tavern (1982), 4 C.H.R.R. D/1191 (Ont. Bd. of Inq.) [woman denied employment because she would not work as a “topless waitress”]; Mottu v. MacLeod,  B.C.H.R.T.D. No. 68, 50 C.H.R.R. D/223 [female servers required to wear a bikini top for a beach themed event night]; Noseworthy v. Canton Restaurant (2009), 69 C.H.R.R. D/33 (N.L. Bd.Inq.) [female employees required to wear skirts and not trousers].
 For a discussion of dress codes and trans and gender-nonconforming individuals, see the Ontario Human Rights Commission’s (OHRC) publication, Policy on preventing discrimination because of gender identity and gender expression, available at www.ohrc.on.ca/en/policy-preventing-discrimination-because-gender-identity-and-gender-expression. For more information on dress codes as they affect people with different faiths, see the OHRC’s Policy on preventing discrimination based on creed at www.ohrc.on.ca/en/policy-preventing-discrimination-based-creed.
 Noseworthy v. Canton Restaurant, supra note 1.
 The Restaurant Opportunities Centers United Forward Together, The Glass Floor: Sexual Harassment in the Restaurant Industry (2014) online: The Restaurant Opportunities Centers United Forward Together http://rocunited.org/pr-the-glass-floor-report/ (retrieved February 10, 2016) at 25; Kaitlyn Matulewicz, “Law and the Construction of Institutionalized Sexual Harassment in Restaurants,” Canadian Journal of Law and Society 2015, Vol.30 No.3, 401-419.
 Noseworthy v. Canton Restaurant, supra note 1; Doherty and Meehan v. Lodger's International Ltd., supra note 1.
 The action plan is entitled, It’s Never OK: An Action Plan To Stop Sexual Violence and Harassment. See www.ontario.ca/document/action-plan-stop-sexual-violence-and-harassment (retrieved November 13, 2015).
 The changes to the Occupational Health and Safety Act take effect September 8, 2016.