Putting the Stress on Dress: Trendsetting cases on dress and appearance policies

Some recent high-profile arbitration decisions have suggested that, at least in unionized workplaces, an employer’s power to dictate what an employee wears at work may be more limited than commonly believed. In British Columbia, for example, a prominent arbitrator recently struck down an employer rule prohibiting employees from wearing shorts and jeans at the office as an unjustified infringement of employee autonomy. Highly-publicized disputes over arguably sexist dress policies imposed by some restaurants have also brought renewed attention to employer policies that affect employee appearance. In this session a panel of experienced counsel will explain the principles that apply to employer dress codes in unionized and non-unionized workplaces and will debate when an employer’s pursuit of a certain look for its enterprise crosses the line from legitimate business interest into discrimination.

• Dress codes: What are the general legal principles applicable to employer dress codes in unionized workplaces? How do these differ from those applying to employer dress codes in non-unionized workplaces? Do “Eurocentric” dress codes discriminate against employees on the basis of place of origin? Put another way, must the employer accommodate employees who dress a certain way to express their cultural identity? When dress required by an employee’s religion conflicts with health and safety in the workplace, how do adjudicators strike an appropriate balance? How do new provisions in human rights legislation prohibiting discrimination on the basis of gender identity or gender expression affect workplace dress codes and other workplace policies related to employee appearance?
• Policies going beyond dress: In what circumstances can an employer justify a rule regarding appearance that will affect the employee’s appearance off duty (e.g. policies requiring men to be clean-shaven or prohibiting visible tattoos)? Is it discriminatory for an employer to make employment decisions (i.e. hiring, firing) based on aspects of personal appearance that may not be protected by human rights legislation, such as weight, height or attractiveness? Do employer decisions based on notions of attractiveness offend prohibitions against discrimination based on sex or age? Can a certain appearance be a bona fide occupational requirement? For example, can a nutrition store refuse to hire individuals management considers to be overweight or, alternatively, frail?
• Discipline: Must employees follow the “work now, grieve later” rule when employers ask them to alter their appearance (e.g. remove false nails, shave a beard, remove piercings, etc.)? Can employees refuse to follow a certain rule regarding appearance on the basis that following the rule will affect their off-duty appearance and/or cause them mental stress or psychological discomfort? Does failure to regularly and uniformly enforce the rules give employees a “false sense of security” and make discipline inappropriate?

• Members of the Nova Scotia Barristers Society may count this program for 1.5 Continuing Professional Development hours.
• Each audio conference has been approved by the Law Society of British Columbia for 1.5 Continuing Professional Development hours.
• Each audio conference has been approved by the Law Society of New Brunswick for 1.5 Continuing Professional Development hours.
• Each audio conference has been approved by the Law Society of Saskatchewan for 1.5 Continuing Professional Development hours.
• CPD for Members of the Law Society of Upper Canada: 1.5 Substantive Hours; 0 Professionalism Hours.