“Sex Sells” is not an Exclusion under the Ontario Human Rights Code: The OHRC Policy Position on Sexualized Dress Codes

Mar 18, 2016

By Pamela Krauss, Lawyer

On International Women’s Day 2016 the Ontario Human Rights Commission (OHRC) released a policy position on gender specific dress codes encouraging employees to bring complaints of unequal treatment forward and encouraging employers to be proactive in rethinking mandated sexy dress codes in the workplace. 

http://www.ohrc.on.ca/en/ohrc-policy-position-gender-specific-dress-codes

In a nut shell the OHRC has made it clear that any gender specific mandated dress code that cannot be legitimately linked to the requirements of the job risks violating the Ontario Human Rights Code.   This is nothing new.  The OHRC notes that 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.

What is new is the OHRC’s direct approach with calling out the ongoing, clear but subtle offensive unequal treatment women are still subject to in the restaurant and bar industry.  Importantly the arbitrary uniform requirements of women vs. their male counterparts in the industry also perpetuates barriers for transgendered employees.  Women have fought and succeeded to have the right to wear similar uniforms to their male counterparts in many professions such as policing and medical care - society seemed to understand it was discriminatory to require women to dress “like women” in these areas of the workforce.  Does the nature of the work servers and bartenders do warrant an exception to the requirement somehow? 

The Code inherently operates to protect persons vulnerable in our society from discrimination, harassment and unequal treatment in the workplace based on protected grounds, including gender.   It goes further to impose a duty on employers to provide a workplace free from sexual harassment.  These laws are directed at ensuring persons in Ontario can participate in the workforce with dignity and self-respect and without having to endure unwelcome sexual behavior and advances.   In particular employers have been mandated with the duty to ensure women do not have barriers to full and equal participation in a safe and welcoming workplace.

The OHRC has called out the bar and restaurant industry directly focusing on the reality that gender specific dressing in their establishments contributes to an unwelcome and discriminatory workplace environment for women and transgendered individuals.  The OHRC is not indicating there must be a ban on allowing sexualized dressing in the workplace.  It is a reminder that requiring a woman to dress a certain stigmatic way as part of her job requirement is a violation of her human rights.  Statistics report that sexy dress codes result in women being more vulnerable to sexual harassment from other staff, management and customers.  The data also shows that women are not necessarily choosing to dress this way and deal with the harassment, but the nature of the industry and their circumstances precludes them from verbalizing any objections to it.  This is exactly the type of situation that the Code is mandated to protect against and is an example of the power of the Code to effect change.

For employers this policy is not a new law, it is a reminder of what the law has stated for many years.  Without complaints and enforcement sought by the private citizen however, the law goes unenforced.  The OHRC does not have independent power and authority to inspect workplaces and enforce the Code outside of a complaint brought by an employee. What is new is the media coverage this has gotten, undoubtedly because of the timing of the policy statement being made on International Women’s Day.  Accordingly the call out to women to speak up against their workplace dress codes may result in an increase in complaints being brought forward for consideration by the OHRC.  In light of this policy statement employers may want to revisit whether continuing to rely on the notion that “sex sells” as reason to mandate sexualized dress codes for women within their establishments is desirable.    It would be my opinion that raising a “sex sells” defence in the face of a complaint brought forward regarding an unequal mandated dress code for women will likely have a low chance of success. 

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