Workplace Dress Codes: Style or Stereotype?
When Do Workplace Dress Codes Cross the Line into Discrimination?
“[I]nappropriate or unprofessional appearance” has come out as the top reason for bias in hiring decisions in a recent study. But at what point could this constitute discrimination under the law, and do job candidates have any recourse if so?
Under the Ontario Human Rights Code and the Canadian Human Rights Act, job candidates are prevented from discrimination on the basis of numerous protected grounds. Some examples are race, creed, age, gender, sexuality, and family status. It is not enough for a hiring decision to be based on an “unfair” ground. It must discriminate on a specific protected ground for there to be any recourse under human rights legislation.
Can appearance-based hiring policies be discriminatory?
There are situations where hiring decisions based on professional appearance could constitute discrimination. For example, a policy that forbids certain hairstyles could find itself discriminating on the basis of race, if the ‘banned’ hairstyles disproportionately impact individuals of a certain race.
The only way that a requirement that has a negative or adverse impact on individuals’ protected grounds can be permissible is if it is “reasonable and bona fide”. To prove this, an employer would have to prove that the requirement:
- Was adopted for a purpose or goal rationally connected to the function being performed;
- Was adopted in good faith, believing it to be necessary to fulfill said purpose or goal; and
- Is reasonably necessary to accomplish said purpose or goal, such that it would be impossible to accommodate the individual without causing undue hardship to the employer.
In other words, the employer would have to provide very good reasons to justify any potential violations of protected grounds under human rights legislation.
Why is proving discrimination in hiring so difficult?
That said, it is usually difficult to establish discrimination in hiring decisions because of a lack of a paper trail to prove it. However, there might be written evidence like a job description that lays out expectations regarding professional appearance. For instance, if a job description outlining professional appearance bans religious clothing like a hijab or turban, this could be seen as an argument for discrimination. The main method of recourse under the law is submitting an application to either the Human Rights Tribunal of Ontario or the Canadian Human Rights Commission, depending on whether the employer is provincially or federally regulated.
What should you do if you think your rights were violated during hiring?
If you find yourself having lost a job opportunity because of a ‘lack of professional appearance’ that discriminates based on protected grounds, it is possible that you may have a human rights discrimination case. An experienced employment lawyer can help you judge the strengths of any potential case and what your best next steps might be, such as an application at the relevant human rights tribunal or sending out a demand letter to secure you a settlement for your suffering. If you have any questions regarding discrimination in hiring, please contact Whitten & Lublin online or by phone at (416) 640 2667 today.
Author – Sohrab Naderi