July 8, 2016
[Restaurant Company Contact name and address]
Dear [Restaurant operator name],
Under Ontario’s Human Rights Code (Code), the Ontario Human Rights Commission (OHRC) works to identify, prevent and eliminate discrimination, and promote and advance human rights across the province. To do this, we use our legislated powers, including policy development, public education, organizational change projects, inquiries, applications to the Human Rights Tribunal of Ontario (HRTO), and interventions before the HRTO and other courts and tribunals.
Over the past several months, media reports have raised concerns about sexualized and gender-specific dress codes affecting front-of-house staff in the restaurant sector, and several related applications have been filed with the HRTO. Based on our research, we are concerned about dress codes at your restaurant.
Employers can have dress codes; however, sexualized and/or gender-specific dress codes reinforce stereotypical and sexist notions about how women should look and will, in most circumstances, violate the Code. Any sex-based differences in the dress code must be legitimately linked to the requirements of the job, or they will be discriminatory.
In pursuit of our public interest mandate, section 31 of the Code authorizes the OHRC to request production of documents and gather other information as part of an inquiry. Pursuant to section 31, we are writing to request that you review employee dress codes in your Ontario operations, remove any discriminatory requirements, and provide documentation showing that you have done this.
Your organization is one of several industry leaders that we are contacting. As a leader, your policies have a systemic impact both in terms of the number of people employed in your operations and your potential to influence industry norms and standards. By removing human rights barriers, you can reduce the likelihood of complaints, improve working conditions and morale, and help create a culture of respect, dignity and human rights compliance across the sector.
The OHRC released a Policy position on gender-specific dress codes on March 8, 2016, to provide guidance to employers – including restaurants – and employees (see Appendix A). The Policy position sets out how dress codes can constitute prohibited discrimination under the Code, and the links between discriminatory dress codes and sexual harassment in the restaurant industry. It also cites human rights legal decisions since the early 1980s that have found gender-specific and sexualized dress codes to be discriminatory based on sex.
Responsibilities under the Code exist whether an employee dress code is broad company policy set by head office, or decided by individual managers at their particular establishments. Franchisors and franchisees are also both responsible to ensure any policies and practices are non-discriminatory, and franchisors may be held liable for discrimination and harassment by a franchisee, in some circumstances. It is therefore very important that companies make sure that their franchises’ dress code requirements comply with the Code and that they respond quickly and effectively to any complaints. The Code applies whether the dress code is a formal written policy, or is more informal, such as “suggested” practices.
In recent months, a few restaurants have reported that they have changed or are reviewing their dress codes, but most have remained silent. Meanwhile, there are ongoing reports of employer dress requirements and practices that may be discriminatory based on Code grounds, including sex, gender identity, gender expression, creed (religion), race, sexual orientation and others (See Appendix B for examples of gender-related dress code policies and practices that may violate the Code).
Employers must make sure that any uniform or dress code policy respects employees’ dignity and right to fully and equally take part in the workplace without discrimination. When setting out dress codes to meet genuine business needs, employers should not rely on stereotypes or sexist ideas of how men or women should look. They should think about a range of clothing options. Dress code policies need to be flexible and include everyone, regardless of their sex, race, gender identity, gender expression, religious faith, disability or other Code grounds. Employees should be able to choose from this range of options without pressure or coercion.
The OHRC recently met with Restaurants Canada and the Ontario Restaurant, Hotel and Motel Association (ORHMA) to seek their cooperation in addressing systemic human rights issues in the restaurant sector. We are actively working with them to raise awareness among their members about their legal obligations under human rights legislation.
As an operator of some of Ontario’s leading casual dining restaurants, we request that you review your existing policies and amend them as needed, to ensure compliance with the Code and OHRC policy.
The OHRC seeks your commitment that, as of December 1, 2016, dress code policies and procedures for all of your Ontario operations will:
- Allow for a range of dress/uniform options, for all staff in all front-of-house positions
- Not require any staff to wear sexualized, revealing or gender-stereotypical clothing
- Ensure that all staff can choose from clothing options, including pants, that are comparable in terms of style, comfort, practicality and coverage, regardless of sex or gender
- Offer uniform sizes that fit a wide range of body types
- Make all dress code options available by default, rather than only offering certain options by request
- Not include grooming or appearance rules or expectations for women that are more onerous than those for men, that are sexualized or based in stereotypical ideas of female attractiveness
- Allow for a range of hairstyles, and do not require a specific hairstyle unless it is a legitimate requirement of the job (e.g. food handling)
- Specify that applicants or interviewees cannot be asked to identify what kind of uniform option they will choose to wear until they have been given an offer of employment
- Include processes for handling accommodation requests and complaints relating to the dress code
- Be communicated to and freely available to all staff.
See Appendix C for OHRC resources on human rights obligations relating to dress codes, sexual and gender-based harassment, and other employment discrimination prohibited by the Code.
We would appreciate a response to this letter by August 22, 2016, to confirm that you have implemented the above measures in your Ontario operations, or that you will commit to implementing these measures in all Ontario operations by December 1, 2016, and what steps the company has taken or will take to do so.
We also request that, on or before December 1, 2016, you provide:
- Written confirmation that the above measures have been implemented
- Copies of the relevant dress code policy and any related procedures
- Information about how the dress code policy has been communicated to all franchises, management and staff, and how it is made available to staff on an ongoing basis
- Information about the processes for handling accommodation requests and complaints relating to the dress code.
We also welcome any information you wish to provide about general human rights, anti-discrimination or anti-harassment policies and procedures (including any training, education and complaint processes) currently in place in your Ontario restaurants or other public food service operations.
If you would like to discuss this matter further, please contact my office. Alternatively, you or your staff may wish to contact Jacquelin Pegg, Inquiry Analyst with the OHRC’s Legal Services and Inquiries Branch, at firstname.lastname@example.org.
In keeping with the OHRC’s commitment to public accountability and its duty to uphold the human rights of people of Ontario, this letter, and the responses or a summary of the responses received, may be made public.
We look forward to receiving your responses.
[Original letters signed by]
Renu Mandhane, B.A., J.D., LL.M.
Copy: Attorney General