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That Outfit May Get You Fired

Valentine’s Day is almost here. This is not intended to remind you to love your employees and coworkers. You shouldn’t “love” them anyways. Just do your job, be professional and go home happy, which is what some of the employees I dealt with over Halloween and Christmas should have done. There are times, however, when people choose to express their creative side at work. So before little Cupid or Cupid’s Helper shows up at the office this week, perhaps it is a good time to review the law on dress codes.

Companies and organizations spend a lot of time on marketing, creating a brand, a reputation and an image. This can be ruined in a heartbeat by a customer or client, or employees themselves, taking pictures at work and posting it on social media showing someone inappropriately dressed. Just recently, a Twitter user posted a photo of a JetBlue employee on Halloween at Fort Lauderdale airport dressed as a homeless person carrying a sign stating “Homeless, need help trying to get back home to Puerto Rico or Cuba.” The costume understandably offended many who saw it. It led to a social media frenzy, and caused the company to issue a public apology.

These days, a dress code or guidelines for social events are not only legal, they are advisable. There are too many risks that can arise and get out of hand too quickly given that everyone has a camera on their phone and most people have some form of social media connected to their mobile device.

Employers may introduce and enforce reasonable codes of conduct or dress codes for the workplace – so long as they are not discriminatory as per human rights legislation and, in the unionized setting, not in violation of a collective agreement provision.

It is perfectly reasonable for an employer to require employees to adhere to a “business dress code.” However, take care in drafting a dress code requiring employees to wear suits, dresses, skirts, dress pants, dress shoes, etc. In Saadi v. Audmax, 2009 HRTO 1627, the Ontario Human Rights Tribunal found that just such a code was discriminatory as it neglected to take into consideration the complainant’s religious requirements for modest clothing and head covering. The employer was ordered to pay the complainant $15,000 in damages for injury to dignity and self-respect.

The take-away from cases like Saadi is that courts and human rights tribunals will balance the legitimate business interests of employers such as reputation and marketing, with the human rights and personal rights and privacy of employees. Accordingly, employers have the right to create and enforce rules restricting employees’ choice of clothing – so long as they are able to justify those rules based on legitimate business interests AND not infringe on human rights (or collective agreement rights, if they exist) of the employees involved.

If you are interested in developing a company dress code, or a social media policy, please contact a member of our Labour and Employment Group.

Happy Valentines!

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Lawson Lundell's Labour and Employment Law Blog provides updates on the most recent legal developments impacting the Canadian workplace and offers practical tips for employers. We cover a range of topics, including labour relations, employment law, collective bargaining, human rights, employment standards, employment equity, workers' compensation, business immigration, privacy, occupational health and safety and pensions and employee benefits. 

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