Is it discriminatory for an organization’s dress code to prevent a volunteer from supporting a cause they care deeply about? That’s the question that Ontario’s Human Rights Tribunal recently addressed in Zanette v. Ottawa Chamber Music Society.
Mr. Zanette was a long-time volunteer for the Ottawa Chamber Music Society, or Chamberfest, a not-for-profit that puts on a number of musical events throughout the year. He was aware of and agreed to a number of Chamberfest policies, including its dress code, which prohibited the alteration of name tags. Even so, he placed a rainbow flag sticker on his name tag while volunteering as an usher at a 2019 event. A representative of Ottawa Chamber Music Society (OCMS) asked him to remove the sticker from the name tag in accordance with the dress code. Mr. Zanette eventually removed the sticker and continued to volunteer with Chamberfest without the issue being raised again. Later, he filed a human rights complaint alleging that the OCMS’ direction to remove the sticker from his name tag was discriminatory on the basis of sexual orientation, gender identity, and gender expression.
For his complaint to be successful, Mr. Zanette had to demonstrate prima facie discrimination by proving three elements:
- That he has a characteristic that is protected by the Human Rights Code of Ontario (the Code);
- That he suffered disadvantage or an adverse impact of some kind; and
- That the protected characteristic was a factor in that disadvantage or adverse impact.
While Mr. Zanette is undoubtedly a member of a Code-protected group (sexual orientation, gender identity or gender expression), that alone was insufficient for finding prima facie discrimination. The Tribunal noted that not all differential treatment is discriminatory. Rather, the actions in question – here, asking for the rainbow sticker’s removal – have to engage the right to equal treatment in a substantive sense. That means actions that are arbitrary or “create a disadvantage which limits opportunities, perpetuates prejudice and stereotyping, or fails to recognize pre-existing disadvantage”. An action merely being unfair does not engage Code protection; it must rise to the level of prohibited kinds of discrimination.
The Tribunal held that OCMS’ request was not direct discrimination because it was based on their dress code. This dress code applied equally to all staff and volunteers regardless of the cause being promoted. There was no evidence to suggest that it was arbitrarily applied to Mr. Zanette on the basis of his sexual orientation, gender identity, or gender expression.
The Tribunal then held that OCMS’ request was not indirect discrimination, which is when a requirement that appears neutral excludes or disadvantages a group protected by the Code, for the same reason: this dress code applied equally to all staff, volunteers, and causes. There was no evidence that any staff or volunteer had ever been allowed to alter their name tag.
Finally, there was no evidence to show that wearing a rainbow sticker was necessary for being a member of that community. Therefore, being asked to remove it because of a uniformly applying dress code did not amount to substantive discrimination under the Code, and the application was dismissed.
Conclusion
So, can dress codes be discriminatory? Potentially yes, if they are applied arbitrarily or unfairly. This decision is an important reminder that volunteers can file human rights complaints and that any dress code should be clearly written, consistently applied and enforced, and that volunteers need to be made aware of any dress code in advance. Allowing a volunteer to promote one cause or another will likely mean that all must be allowed, or a claim for substantive discrimination could succeed.
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