Is Dress Code a Human Rights Issue?
What kind of dress code accommodations are required under the Ontario Human Rights Act? A recent case from the Ontario Human Rights Tribunal illustrates the nuances of an employee’s rights to expression, and the employer’s obligations to accommodate protected grounds under the Ontario Human Rights Act.
Is dress code a human rights issue in the case of Zanette v Ottawa Chamber Music Society?
In Zanette v. Ottawa Chamber Music Society, 2024 HRTO 998, the applicant was a volunteer who sought to wear a rainbow flag sticker on his volunteer name badge but was prohibited from doing so by the respondent in accordance with their dress code policies. The applicant, who was a member of the 2SLGBTQ2 community, alleged that this prohibition was discriminatory on the grounds of sexual orientation, gender identity, and gender expression.
The tribunal applied the three part test to determine whether there was a prima facie case for discrimination: 1) Was the complaint a member of the protected group? 2) Did the complaint suffer a disadvantage or adverse impact? And 3) was the protected characteristic a factor in this adverse impact?
The tribunal had no issue answering “yes” to the first two questions, but examined the third question in depth. The tribunal first found that the prohibition was not a direct discriminatory act against the complainant, since it was the enforcement of general policies.
The tribunal then found that the prohibition also did not amount to indirect discrimination, because there was no evidence that the wearing of the rainbow flag sticker was an essential element of being a member of the 2SLGBTQ2 community.
The complaint was ultimately dismissed. However, this case serves as a good illustration of the requirements of accommodation. Firstly, all such accommodation must be treated on a case-by-case basis. Secondly, there must be consideration of the differences between personal preferences versus actual requirements for protected groups.
How can Whitten and Lublin help you in understanding an employer’s duty to accommodate?
As this case shows, accommodation is a nuanced matter. The important takeaway is that each request for accommodation must be analyzed case-by-case, with specific consideration for the employee’s request, background, and circumstances. If you are an employee seeking an accommodation, or an employer seeking to navigate a request, Whitten & Lublin is here to assist you. Contact us online or by phone at (416) 640-2667.
Author – Aaron Zaltzman