We are often asked how dress codes and appearance standards fit within the preview of the human rights legislation.
At the onset, employers and employees need to know that human rights legislation does not interfere with an employer’s right to set standards of dress or appearance that are appropriate to their business goals or functions. However, conflicts may arise when the standards or codes impose a burden, obligation or disadvantage on one gender and not the other, or when the standards are enforced so rigidly that they interfere with an individual’s religious belief, their disability or any other ground protected in human rights legislation.
In Mottu v. MacLeod and Barfly Nightclub, [BCHRT 76, 2004] the Tribunal found that the club’s dress standard was not applied comparably between male and female staff which resulted in a finding of sex discrimination. Female servers were required to wear an article of clothing that was gender-specific and had sexual connotations associated with it; in this case a bikini-top. Male workers, while required to dress for a “Hawaiian theme night”, were not required to wear gender-specific clothing nor were they required to wear a specific article of clothing that had sexual connotations associated with it. When one of the female servers showed up with a shirt covering her bikini-top, the employer changed her working conditions and continued to retaliate against her for complaining to the union, contacting the media, and eventually filing a human rights complaint.
The Tribunal found the dress requirements were not applied equally between the genders and ruled in the complainants favor. It is fairly well established in case law that dress requirements that accentuate sexuality or have sexual connotations associated with them, will be open to human rights complaints.
In many cases it may be appropriate to have dress codes or standards that are different for men and women. However, what you want to ensure is that the standard itself is imposed in a way that is comparable across genders. For example, a dress code that says “men cannot have long hair and women with long hair are expected to keep it tidy” is more comparable across genders than a dress code that simply bans ponytails for men only. Review your policies to ensure they are applied equally and comparably across genders and that they treat everyone fairly regardless of their gender.
Building Principles of Diversity and Accommodation into the Standards
Another common area where dress standards often conflict with human rights law is in relation to religious beliefs. A ‘no hats’ policy discriminates against those that are required to wear a turban or a skull-cap as a tenant of their religious belief. A ‘no beards’ or ‘clean shaven’ policy may have the same effect. In these cases, you want to ensure your policy is flexible enough to accommodate religiously-mandated attire or appearance.
What about tattoo’s, body piercing, etc.
Dress codes and appearance standards are at the discretion of the employer. If the policy infringes upon the rights of a protected group – females, males, religious belief, disability, etc. – then there may be a breach of human rights law. In the case of tattoo’s and most body piercing, the employer has the right to ask that they be covered and the employer may exercise their right to discipline when an employee does not comply.