Cracking the (dress) code

Your employees put on their socks one foot at a time, just like you, yet how they dress while in your place of business might not be quite as straightforward.

Some bars and restaurants have recently come under scrutiny from provincial human rights commissions for dress code policies that apply differently to female employees—short dresses, low-cut tops, and tight-fitting clothes. Such businesses are at risk of being found to have violated their employees’ human rights on grounds of gender discrimination.

Although there’s no hard and fast rule as to what is acceptable or standard in a company dress code, some workplaces have health and safety requirements pertaining to work gear and clothing that are basically not up for debate and are matters of required employment standards: hard hats, steel-toed boots, or a hairnet, to name a few common examples.

In other cases, an organization’s dress code will be fairly loose and open to a degree of interpretation (and this is where things can get messy).

Generally, a dress code should meet the following criteria:

• Legitimacy: it serves a legitimate need that can’t be accomplished through less restrictive methods
• Clarity: it is clear about what’s allowed and what is forbidden
• Legality: it doesn’t violate a collective agreement (if it’s a unionized workplace)
• Non-discriminatory: it doesn’t discriminate on the basis of a prohibited ground (e.g., gender, religion)
• Equality: it is applied and enforced equally and consistently

“Part of owning a small business is making it your own, and a major component of this relates to branding,” says CFIB Business Counsellor Cesar Gomez. “From your logo to your business cards/flyers, all the way through to your company’s expected dress code.”

Your company’s definition of a “professional appearance” may differ from the business next door. In a diverse country such as Canada, a standard notion of “appropriate” dress can be tricky.  Evolving cultural considerations always inform social norms — what was once considered essential workplace dress (e.g., a necktie, a three-piece suit) may now be considered old-fashioned in the world of “business casual.”

A good example is the use of “Casual Friday” to allow workers one day a week to dress down. Of course, some say this has gone too far, with office workers showing up in tank tops and sandals. It’s all about setting expectations. If you communicate your expectations and they are clear and well-understood, and not based on mere whims, there should be no ambiguity.

It’s also about balance: balancing your right to have your business represented by workers who project a professional appearance while also respecting their freedom of expression and privacy.

These considerations can help guide your dress code:

• Be prepared to justify the business and/or health and safety purpose of your dress code
• Consult with your staff on what should and shouldn’t be covered in a dress code
• Consider gender-neutral uniforms as much as possible

Check out the meaning of “bona fide occupational requirement.” This is a legal concept that comes from human rights law on employment, where a prohibited ground of discrimination (for example, based on religion) comes into conflict with a legitimate requirement that is essential to the proper performance of a given role or function.

In a case where an employee wishes to wear a religious garment on the job, but to do so would put his safety at risk, the nature of his duties will be considered. If (for example) wearing a helmet is crucial to the proper and safe performance of the role, this will be considered a “bona fide occupational requirement.”

Good basic place to start: make sure your proposed dress code does not conflict with provincial Human Rights Codes on such areas as gender or religion. An employer is expected to accommodate a worker on dress code policies up to a point of undue hardship.

In the final analysis, let common sense and reasonableness guide your approach: there is often a fair way for an employer to accommodate a worker without having to resort to formal discipline or legal proceedings.

“It is important to have a dress code that is reflective of your business, where your employees can feel confident, safe and proud to work in your business,” says Gomez. “There are regulations that exist for dress codes. It is crucial to read the human rights information or contact a Business Counsellor to ensure you’re on the right path. Understanding the rules can help you avoid a claim, which we’ve heard from CFIB members can be time-consuming or costly.”