Can Employers Be Sued for Imposing Employees’ Dress Code?

Introduction

Dress code discrimination is a common issue at most work places around the world.  Any employer imposes any gender-specific dress codes at work could breach discrimination laws.

Recently in London, Nicola Thorp, a temporary receptionist, was sent home from work without pay at Pricewaterhouse Cooper after refusing to wear “2 to 4 inches” high heels at work.  As Ms. Thorp found the employer’s demand was discriminatory, she started a petition calling for a change in UK law so that companies can no longer force women to wear high heels to work.

While we wait to see the potential change of UK discrimination law, this newsletter discusses how employees pursue sex discrimination actions against their employers in Canada and Hong Kong.

Dress code discrimination in Canada

In McKenna v Local Heroe Stittsvile 2013 HRTO 1117, a bar sexually discriminated against Ms. McKenna, a pregnant employee, when she asked not to wear a new tight uniform, which was introduced as part of a new dress code of the bar when McKenna was four months into her pregnancy.  McKenna requested for not wearing the new uniform as it highlighted “her already visible pregnancy figure”.  Although the bar manager agreed Ms. McKenna wouldn’t have to wear such uniform, Ms. McKenna stopped receiving work from the bar thereafter.  She then received a Record of Employment indicating she had resigned from the employment.

Canadian laws

Under sections 5(1), 9 and 10(2) of the Ontario Human Rights Code (the “Code”), discrimination in employment on the basis of sex is prohibited.  The right to equal treatment without discrimination because of sex includes the right to equal treatment without discrimination because a woman is or may become pregnant.

Canadian court ruling

The Human Rights Tribunal of Ontario ruled that the employer has discriminated against Ms. McKenna and violated the Code.  The Tribunal ordered the bar to pay for McKenna’s lost income and compensation for “injury to dignity, feelings and self-respect”.  Further, the managerial staff was obliged to complete online “human rights” training provided by the Ontario Human Rights Commission.

How about Hong Kong?

In 2010, the Hong Kong Equal Opportunities Commissioner (“EOC”) issued a writ on behalf of Ms. Kwong, a secondary school teacher, against her former employer (a secondary school in Ma On Shan) and the school principal, claiming the employees dress code has discriminated against her on the grounds of her gender and that the principal had repeatedly humiliated her over her attire in the public.

In the writ, Ms. Kwong claimed while the school principal has repeatedly criticised her for not wearing a dress or a skirt, there was no any particular dress code imposed on male teachers (apart from the ban on t-shirts and jeans). Male teachers were allowed to wear less formal pants and not required to put on a jacket at work.  On several occasions, Ms. Kwong was “strongly advised” by the school principal to wear dresses/ skirts rather than trousers at work.  Such “advices” had caused Ms. Kwong suffered tremendous stress and thus she resigned after two months of her employment.

Hong Kong laws

In Hong Kong, although there is no provision in the Sex Discrimination Ordinance (Cap. 480) (“SDO”) explicitly stating that dress and appearance codes in employment are unlawful, the EOC advises employers should avoid imposing unnecessary dress and appearance codes to avoid any direct or indirect discrimination to the employees.

Under sections 5(1)(a), 6(1) and 11(2)(c) of the SDO, it is unlawful for an employer to treat a person less favourably than another person in comparable circumstances because of one person’s sex.  In other words, it may be discriminatory if the employer imposes dress code restrictions on one gender only.  For example, if the employer only imposes hairstyle restrictions on male staff, it may be discriminatory; on the other hand, if a requirement on clothing only applies to female staff and no such relevant requirement is imposed on male staff, such requirement would amount to sex discrimination.

In Ms. Kwong’s case, as the school agreed to settle the matter by offering an apology and compensation to Ms. Kwong after the issuance of the writ, so far there is no precedent in ruling sexual discrimination regarding work attire by the Hong Kong courts.  However, given that female teachers were subjected to a stricter dress code than male teachers, to their detriment, Ms. Kwong has been sexually discriminated by her employer pursuant to the SDO.

How to avoid sex discrimination over work attire?

While it is legal for employers to set a standard of dress in the work place, such as business attire, employers should maintain gender-neutral work place policies to avoid discrimination.  The Canadian case shows that sex discrimination is a violation of human rights.

In Hong Kong, the EOC has set out practice guidelines which urge the employers should (1) strike a balance between the requirements of the particular industry, client base, business needs, as well as the employees’ personal freedom to present their own appearances; and (2) review their employees code periodically in order to take into account of changing social conventions.

Last but not least, to avoid discrimination, policies should be imposed on both sexes in an even-handed manner.