Discrimination & Dress Codes: Can My Employer Make Me Wear Make-up?

The Union that represents Air Canada flight attendants made news this month when it filed a human rights complaint against the airline based in part on its uniform and make-up rules. The Union alleges that the airline’s dress code discriminates against employees on the basis of sex, sexual orientation and race. If your employer has rules about what you can wear to work, you might be wondering: can my employer make me wear make up?

The Canadian Human Rights Tribunal has not previously considered whether mandating make-up on the job is discriminatory. In fact, while many women have filed complaints about compulsory cosmetics over the years, this may be the first Canadian case to specifically consider whether mandatory make-up policies are discriminatory. Prior complaints raising this particular issue appear to have been dismissed for procedural reasons or resolved by the parties.

THE LAW OF DRESS CODES

Dress codes are perfectly legal- as long as they’re grounded in real business needs and don’t discriminate. Human rights tribunals have even upheld dress codes which apply different rules to men and women in some circumstances. For example, actors or historical re-enactors can be required to comply with gendered standards. In addition, a general requirement that employees dress be well-groomed would not normally cause legal problems.

Dress codes which impose stricter rules for women or require women to dress ‘sexy’ instead of practically or safely are harder to defend, but very common. For example, servers and bartenders often face rules requiring tight clothing, mini-skirts, and other ‘sexy’ clothes. Cases alleging that these rules are discriminatory have been successful in recent years, especially in cases where other factors make the rule even more offensive. For example:

• In a 2015 case, new management at a sports bar imposed a new dress code that included a tight t-shirt and yoga pants or shorts as part of its efforts to attract a younger clientele. A server complained that the new form-fitting uniform wouldn’t work for her, because she was pregnant. She was later fired. The new dress code was a factor in the Tribunal’s finding that the bar had discriminated against its employee based on pregnancy. The Tribunal awarded her $17,000 in human rights damages and $2,848 as compensation for lost wages.
• In another case, the employer didn’t have a formal policy, but when an employee asked a question about the summer dress code, her boss told her she should wear short skirts and “show cleavage”. The Tribunal awarded her $3,000 in human rights damages for harassment based on this single comment.

There are so many reasons why these rules are a bad idea.

Rules like this send the message that women’s worth as workers is linked to their sex-appeal or, at least, whether they are conventionally attractive. Distaste for these rules keeps some women from applying for or staying in certain jobs. It is understandably discouraging for women whose religious beliefs play a role in their dress and make-up choices. Other workers don’t have a choice. They accept dress codes they don’t agree with because they need the money or because there are limited alternatives in their field. Many flight attendants likely fall into the latter category, since part of Air Canada’s defence is that their rule mirrors industry-wide standards.

At the same time, these rules have a negative impact on LGBTQ folks, particularly gender non-conforming workers and trans employees. Make-up or sexy dress requirements put workers who don’t feel comfortable in gendered clothing or make-up in a difficult situation. You should never have to hide your identity at work. You should also never be forced to discuss your gender identity or sexual orientation with your boss or co-worker if you aren’t ready or aren’t comfortable. These conversations are more than awkward. Trans and gender non-conforming folks experience disproportionate levels of unemployment and workplace discrimination , often due to an inability to conform to gendered expectations about how an employee should look or dress on the job.

NEXT STEPS FOR LAW-MAKERS?

In 2016 Canadian media reported extensively on the sexist and physically dangerous practice of requiring female servers to wear high heels on the job. In response, Ontario recently moved to expressly ban employers from requiring high heels on the job by adding a provision to the province’s Occupational Health and Safety Act. The new law includes an exception for actors whose costumes might legally include heels and for occupations where a heel might actually be safer (horseback riding instructors, maybe? ).

The legislature could impose a similar ban on forcing employees to wear make-up on the job. Explicitly banning employers from including certain requirements in their dress codes leaves less up to interpretation. This would provide a clear definition of what breaking the law looks like. Since tribunals have been sending the message that the practice is risky for years, a black-and-white rule might be just what’s needed to finally force change.

Cases and Resources:

• McKenna v Local Heroes Stittsville , HRTO 1117 (CanLII)
• Lee v NCR Leasing Inc , 2016 HRTO 1440 (CanLII)
• Ontario Human Rights Commission, Sexualized and Gender Specific Dress Codes: Frequently Asked Questions
• Occupational Health and Safety Act, s. 25.1

Note: Flight attendants are federally regulated employees whose human rights at work are protected by the Canadian Human Rights Act. Most Ontario workers are provincially regulated and covered by the Ontario Human Rights Code. While human rights rules are similar country-wide, some differences exist.