My first job was with a popular fast food restaurant as an eager sandwich maker (or sandwich artist). As an employee, I wore black pants and a golf shirt with the restaurant’s logo on it. There may also have been a hairnet involved. The uniform (hairnet excluded) made me feel like I was part of a team and it made it easier for customers to recognize who was an employee of the establishment.

There can be a myriad of reasons why a business will choose to have a dress code. However, as we have recently seen in the news with Bier Markt’s unsuccessful bid to have its female servers dressed in a short sleeveless blue dress and heels or boots, dress codes can attract significant legal scrutiny.

In Bier Markt’s case, the dress code differed between male and female servers, with the male servers wearing jeans, a button-down shirt and running shoes. In addition to having to wear the blue dress with heels or boots, female servers were prohibited from wearing sweaters or thick tights. In response, a number of employees filed complaints regarding the dress code and one employee resigned in protest and has initiated a complaint under the Ontario Human Rights Code alleging that the dress code is discriminatory on the basis of sex.

This complaint is certainly not the first of its kind. Arbitrators and Human Rights Tribunals have found dress codes unreasonable in a number of decisions. By way of a snapshot:

• In 2004, The British Columbia Human Rights Tribunal found discriminatory that the female staff at a bar had to wear sexualized outfits where their male counterparts did not.
• In 2013, an Ontario arbitrator struck down a Hospital’s policy requiring staff to not wear piercings and to cover tattoos while at work. The arbitrator held that the policy did not relate to reasonable workplace concerns and was grounded in unfounded stereotypes and assumptions about piercings and tattoos.
• In 2015, an Ontario arbitrator struck down a dress code policy prohibiting staff from wearing jeans or shorts as it did not affect the employer’s reputation or image and therefore unnecessarily limited employees’ ability to decide their own dress.

The case law on dress codes is making it clear that absent a reasonable and verifiable link between dress and the workplace, employers may have a difficult time justifying their dress codes.

That is not to say that there is a presumption that dress codes will not be successfully imposed. For instance, where a dress code relates to the employer’s health and safety policies, it has been upheld. Take for example the case of Bhinder v. Canadian National Railway, where a Sikh employee was dismissed for refusing to wear a hardhat as required. The Supreme Court of Canada held that the hardhat requirement was a bona fide occupational requirement for safety reasons and accordingly was reasonable in the circumstances.

All of that said, the requirement must be consistently applied for all employees and not adversely affect one group or another. The requirement must also be clearly communicated to employees and not result in a significant change in the employment relationship. For instance, in the case of a restauranteur who required only female servers to wear a skimpy tuxedo jacket, bow tie, shorts and high heels leading to several female servers to resign, the human rights tribunal held that the dress code was both discriminatory and a significant change to the conditions of employment. In that regard, the female servers did not voluntarily resign but were constructively dismissed and entitled to their rights to notice, wages and other damages upon dismissal.

So how can one impose a dress code without being dressed down by a decision maker? Here are a few tips:

• Ensure that the dress code is reasonable and relates in a verifiable way to the nature of the work;
• Ensure the dress code is not contrary to applicable human rights legislation. In that regard, be mindful of differentiation between employees on the basis of sex, gender, sexual orientation, creed (religion) to name a few;
• Ensure the dress code is not in breach of health and safety requirements set out in applicable occupational health and safety regulations;
• If you are unionized, ensure the dress code is not inconsistent with the collective agreement;
• Ensure the dress code is clearly defined and consistently applied;
• Ensure that there is agreement on who bears the cost of paying for mandated uniforms (and be prepared to pay for mandating a particular dress code);
• Provide advance notice of the dress code to employees both at the beginning of the employment relationship and/or when a dress code is being imposed in the middle of the employment relationship; and
• Communicate to employees the consequence of breaching the dress code.

Parisa Nikfarjam

About the Author: Toronto Employment Lawyer Parisa Nikfarjam regularly speaks to human resources professionals, educators, and business owners about employment law and workplace human rights issues. Parisa has designed and delivers interactive workshops on such topics as youth employment, harassment and bullying, and social media in the workplace.