5 key questions on dress code policies

With rise of remote work, women still asked to dress provocatively: Expert

5 key questions on dress code policies
Employers cannot make demands that women dress in a provocative way or in an alluring or sexy way at work, says a legal expert.

Even in 2020, female employees continue to be asked to dress provocatively to gain new customers or present a better face while on the job.

And in the age of COVID-19, with many meetings and client meetings being held virtually, it’s still inappropriate to ask women to dress that way, according to Toronto employment lawyer Lior Samfiru in speaking with Canadian HR Reporter on the dos and don’ts of workplace attire.”

Q: What can employers legally say about workplace attire?
“An employer can ask employees to dress professionally and to have a respectful appearance in the workplace, especially in situations where you’re dealing with clients and customers. That is a reasonable expectation and it’s an expectation that an employer should communicate to all its employees.

“An employer cannot distinguish between men and women with its demands. An employer cannot say, ‘We need the women to wear this clothing and these shoes, but we have different expectations of men’… It’s OK to have a uniform policy saying, ‘This is our uniform’ and that applies to everyone but you cannot distinguish between men and women.

“You cannot make demands that women dress in a provocative way or in an alluring or sexy way: That is inappropriate. That is a complete and utter breach of the Human Rights Code and human rights legislation in any province. Distinguishing between men and women is not appropriate and making demands that call upon a female’s attractiveness or asking her to be more attractive, that is clearly inappropriate.

“The only time a woman could be asked legitimate to wear high heeled shoes is if it was a bona fide occupational requirement. If you’re working in a store that sells high heels, it may be appropriate for the salespeople to wear high heels in that situation, but excepting that limited circumstances, unless you can show that wearing high heels is a necessary component of the job, that will be completely inappropriate, and potentially a breach of human rights legislation.

“You see that often in restaurants where female service employees are being asked to wear specific clothing that may emphasize their sexuality and there have been cases dealing with how inappropriate that is, that is certainly a real and a live issue.

Q: How is the rise of remote work affecting dress codes?
“With the extension of the workplace to remote spaces, this issue is coming up more often than it should, with the same demands being made of women, that they should dress in a certain way, they should present themselves in a certain way that’s unique to them, which of course is inappropriate.

“Employers are making demands of their female employees in terms of their appearance on Zoom calls: ‘Make sure you put makeup on, make sure that you dress in a certain way, make sure you do your hair,’ and the same demands are not being made of male employees and that again, whether it’s on a Zoom call, whether it’s in the office, is just as inappropriate.”

Q: What about different cultures and religions, how should employers handle that?
“Employees may have, for cultural, religious reasons, limitations on what they can wear. For example, if you work in a restaurant, there may be a standard uniform but… certain employees may feel that is not something that they can wear. As long as that concern is a legitimate concern and it is tied to their religious beliefs, the employer does have to make reasonable efforts to accommodate that. That may mean changing the uniform or the dress requirements and working with the employee to find a solution.

“An employer cannot say, ‘Too bad, those are our requirements. If you don’t like it, don’t work here.’ That is inappropriate and employer does have an obligation to accommodate.”

Q: How should an employer address inappropriate attire?
“The best way to deal with that is to have policies in advance that say, ‘Here’s what appropriate attire looks like in the workplace,’ and what type of clothing is appropriate. [Consider] what is inappropriate? Are we allowing T-shirts? Or do we have to have dress shirts and if we are allowing T-shirts, what is appropriate and what isn’t?

“That policy has to apply equally, it cannot distinguish. For example, you cannot say that women have to wear high heels; it’s inappropriate to have gender-specific clothing or policies or requirements. But if you have a neutral expectation and you talk about professionalism, and ‘Here’s the image that we want to convey as a company,’ that is perfectly appropriate.

“An employer should have a policy and then also ensure that that policy is enforced if people are not following that policy. It’s OK to speak to them and even to take disciplinary measures.”

Lior Samfiru

Q: Could an employer face a constructive dismissal claim if it insisted upon a certain dress code?
“There’s an implied term in every employment agreement, every employment relationship, that someone is not going to be discriminated against, that someone is going to have their rights preserved. If an employee is subject to a human rights violation or discriminatory conduct, that discrimination is a breach of the terms of employment, so that discrimination is also a constructive dismissal.

“Generally speaking, an employee that has been mistreated or discriminated against — if we’re talking about discrimination based on gender — that employee not only can pursue a human rights complaint, but they can also pursue a constructive dismissal. Everyone has a right to work in a fair and an equal work environment. If the work environment has become discriminatory, that absolutely could give rise to a constructive dismissal.

“From a human rights standpoint, a certain dollar amount that an employer may have to pay an employee, just by virtue of discriminating against him, it’s not necessarily tied to loss of income, we call that general damages. Depending on how egregious just the violation is — it could be anywhere from $5,000 to over $100,000 — that’s just for the idea that I shouldn’t have had my rights violated.

“Beyond that, there could be damages based on loss of income and depending on how long it’s going to take someone to find another job. The damages can be substantial.”

Recently, legal questions addressed by Canadian Reporter have included screening employees for COVID, and some of the best practices around remote recruiting.

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