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When I saw one of my employees on a recent Friday walking through my office, I wrote a note to everyone, entitled “Branding” which, without identifying the offender, included the following:
“One of the formulas to career success is attire. Clients like the success which it connotes. That is part of the DNA of this office and, especially with clients returning to visiting us, is necessary for all of you. It is unacceptable to dress in a sloppy manner any day of the week. It leads to an attitude of sloth and projects that and worse. I don’t expect to see it again. It is not what got us here. It was never an issue before COVID and can’t start now.”
Particularly with the publicity surrounding the Halton District School Board’s claim that human rights law required it to accommodate the transgender teacher with the ludicrous massive prosthetic breasts and that it would incur considerable liability if it did not, it is time for a reminder of what the law actually is — and isn’t — when it comes to attire at work.
Employers can enforce dress codes. It is part of the management rights of every company to enforce professionalism in their workplaces, including in attire. It was the right of the Halton board to tell this employee that she could not wear unprofessional sexualized garb while teaching and every employer can do the same. Human rights law has nothing to do with this and the board’s statement was preposterous.
Employers must accommodate transgender employees but only by permitting them to dress in their chosen gender identity, nothing more.
It was bizarre that Halton stated the law so incorrectly since one would have assumed that it would have obtained competent advice. Either it did not or it mislead the public as to the legal advice it received, preferring its own political correctness to the actual law.
Companies can similarly decide that employees must wear uniforms, assuming they are prepared to pay for them.
The only impact of human rights is that employees cannot be required to wear sexualized garb. It can be otherwise in the rare case where sexualization is the very essence of the establishment, such as a strip club or a Hooters restaurant. But employees can be prevented from wearing sexualized attire, as Halton should have done.
Human rights law also prohibits discrimination between genders respecting workplace attire. For example, an employer cannot require that women dress to a different standard than men.
What about buttons or paraphernalia supporting political/social causes? Some sports leagues, such as FIFA, recently got it right by prohibiting players from wearing any such insignia. The business of business is still business and it did not wish to alienate any group of customers. More important, it wanted its players to focus on, well, playing, rather than on their politics, and to curb some of the animosity which had been developing between them.
An issue associated with dress and apparel is offensive body odour and use of perfumes. Those do impact on human rights law. If people are simply unclean, employers can reprimand them, make them clean up, shower, use deodorant or change their clothes. But if the cause of their body odour is a medical condition, then it must be accommodated, except in jobs where that is not possible because close interaction with others is essential, such as a masseur or hair stylist (in which case accommodation may require transferring the employee to an existing alternate position).
It is necessary to have a tactful, humane conversation about the employee’s condition and ask them, initially, to use deodorant, shower and change and wash their clothes. If they say that they already do all of that, then you have to ask if there is a medical condition and whether it can be treated, including, if they are causing workplace offense, working with their doctors to determine whether there are treatments. If there are and the side-effects are not serious then, like every other human rights accommodation, they are required to take the medication and can actually be disciplined or discharged if they refuse to, similar to the situation with an alcoholic or other substance abuser. If that does not work, other accommodations must be proffered, such as a separate office if possible.
There is a significant obligation on employees to accommodate disabilities.
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Finally, many employees have allergies to perfume and for that reason it is entirely permissible to enforce no scent policies in the workplace.
Human rights issues play a role, but usually a minor one, respecting workplace comportment and attire. Employers are beginning, like Halton, to misunderstand it and extrapolate it well beyond what the law actually requires.
Howard Levitt is senior partner of Levitt Sheikh, employment and labour lawyers with offices in Toronto and Hamilton. He practices employment law in eight provinces. He is the author of six books including the Law of Dismissal in Canada.