This blog post is in response to a recent CBC news article entitled “Women told by the Body Shop to Wear ‘full face of makeup’ to Job Interview turns it down.”
Imagine this: a young woman applies online for a job as a “customer consultant”, and upon being invited to interview she is told that the company’s dress code policy requires her to wear makeup. This young woman, understandably surprised, wonders whether there is something wrong with this makeup requirement. Unfortunately, yesterday’s CBC news article confirms that this scenario is not just a hypothetical situation. According to the article, a woman from Toronto recently turned down a job interview with The Body Shop because she was told she needed to wear a “full face of makeup” to the interview.
A mandatory makeup dress code policy is problematic. Assuming this requirement applies only to women, and this seems to be a reasonable assumption, a company requirement to wear a “full face of makeup” constitutes discrimination on the basis of sex. It may also constitute discrimination on the basis of gender identity and gender expression.
The issue of whether dress code requirements can constitute sex-based discrimination has already been considered in other provinces. For example, in Mottu v. MacLeod, 2004 BCHRT 76, the British Columbia Human Rights Tribunal held that a requirement to wear a bikini constituted discrimination in the terms of the complainant’s employment based on her sex. In that case, employees were required to wear a bikini top in order to work a specific shift, during a special event. In finding the employer engaged in discriminatory conduct, the Tribunal explained:
Ms. Mottu chose not to wear an outfit that was gender specific and that she believed was sexual in nature. I compare this to the fact the male bartenders and door staff were not required to wear something that was gender-specific or carried sexual connotations. I find this constitutes discriminatory conduct and that the actions of the respondents on and after the incident of April 12th constitute discrimination against Ms. Mottu in the terms of her employment based on her sex.
This decision makes it clear that a dress code should not rely on stereotypes connected to protected grounds under human rights legislation. Dress code policies should seek to be inclusive of all employees.[1]
In Nova Scotia, the Human Rights Act was amended in 2012 to include gender identity and gender expression as protected characteristics. The Province of Nova Scotia has since developed best practice guidelines, which includes a guideline specific to dress codes:
Dress codes and rules of appropriate dress/appearance support the full expression of the employees’ gender identity. Expectations around employee dress and appearance are flexible and not gender-specific. Employees, regardless of whether they have indicated that they identify as trans or gender variant, are able to dress in a manner consistent with their gender identity. No employee should be required to dress or present themselves in a stereotypically feminine or masculine way in order to be treated respectfully. Requiring employees to choose between “men’s” and “women’s” clothing is not appropriate.[2]
Thus, the Province has declared that dress codes that require employees to present themselves in stereotypically feminine or masculine ways are discriminatory. A requirement that female employees wear a “full face of makeup” is clearly a request that women in that workplace present themselves in stereotypically feminine ways. This requirement is not only problematic; it is a human rights issue.
Please note this post is not intended to provide legal advice and should never be used as a substitute for professional legal advice. If you are concerned about a potential human rights issue, please contact one of our lawyers for assistance.
[1] For more information on dress code policies and human rights legislation, please visit the Ontario Human Rights Commission’s website: http://www.ohrc.on.ca/en/iv-human-rights-issues-all-stages-employment/7-pay-benefits-dress-codes-and-other-issues.
[2] This excerpt is from the Guidelines to Support Trans and Gender Variant Employees, which can be found here; http://novascotia.ca/psc/pdf/employeeCentre/diverseworkforce/Supporting_TGV_Employees.pdf