With more and more people heading back to work in person, many are rethinking what appropriate work attire really means. In some cases, employers may choose to provide a dress code with guidelines for employees to follow. However, careful thought must be given to ensuring that a dress code is compliant with human rights legislation.

Employers have the right to implement uniform policies for staff that ensure a professional image, address health and safety-related concerns, and meet their organizational goals. These are recognized as “legitimate business interests.”

While becoming less and less common, historically dress codes have set different guidelines for men and women. This included items such as skirts, makeup, and high heels as required items for women in the workplace. Although this type of practice has largely gone out of fashion, employers seeking to establish a dress code need to approach their rules with an eye to making sure that any rules around appearance do not treat anyone differently or unequally on the basis of a protected ground such as their sex, gender identity, race, or other ground protected under human rights legislation in your business’s jurisdiction.

For example, in 2013 HRTO 1117, the Ontario Human Rights Tribunal ruled that the employer, a sports bar, had cut a server’s shifts after she raised concerns about wearing a new form-fitting uniform due to her visible pregnancy. The Tribunal held that this was discriminatory, as management saw the applicant’s visible pregnancy as inconsistent with its efforts to capitalize on the sexualization of its staff. The employer was ordered to pay the employee $17,000 for injury to her dignity and almost $3,000 in lost wages.

Gendered dress code requirements can be discriminatory both on the basis of sex as well as gender identity, as ideas about what grooming or attire is appropriate for men vs women are inherently rooted in gender stereotypes. For trans or non-binary employees, these requirements can be especially harmful.

When applied equally, personal grooming requirements can be a helpful part of a dress code. It is important to note though, that if an employer notices an employee’s level of cleanliness or self-care is in decline, consideration should be given to whether disability is playing a role, including any mental health disabilities. Where an employer notices these changes, especially if they are accompanied by changes to performance at work, the legal duty to inquire is potentially triggered before taking any steps to discipline the employee.

Below are some helpful guidelines to keep in mind when drafting dress codes. Dress codes or uniform policies should:

1. Allow for a range of dress and uniform options in a range of sizes for all staff, and make sure that all options are available regardless of gender.
2. Not require any staff to wear sexualized, revealing or gender-stereotypical clothing.
3. Not include grooming or appearance rules or expectations for women that are different than those for men, or that are sexualized or based on stereotypical ideas of female attractiveness.
4. Not require a specific hairstyle unless it is a legitimate requirement of the job (e.g. health and safety).