Chapter 9: Discrimination and Harassment in Law Practice
56 9.4 Dress Codes
Priya Sharma and Gemma Smyth
Introduction
When students enter an externship placement, they may be asked to follow a dress code. While seemingly a relatively insignificant part of the early days of practice, dress codes are complicated signifiers of status and sociocultural acceptability that can exclude students and lawyers from full participation and inclusion. Without culturally competent approaches and clear policy, students with dreadlocks, nose rings, dress, headscarves, or assistive devices can experience discrimination in the workplace.
When entering a placement, the student might be given a dress code. There might be different expectations online versus in person. There might be no dress code. There might be a dress code for attending court that will be different from working in the office, interviewing clients, and so on.
What is a Dress Code?
A dress code is usually a formal, usually written and published document that sets out the standard of professional wear that is required in a workplace. This standard may also be informally reproduced through a culture created in a profession or workplace environment. Some dress codes only address clothing. Others address grooming more broadly.
A workplace might have a required dress code, but not necessarily. An employer has the authority to set the dress code. But note that a dress code cannot violate the Human Rights Code or the Occupational Health and Safety Act. If they do choose to have a dress code, employers should draft a policy with a variety of options for all staff. Additional work policies should include:
- Not requiring any staff to wear sexualized or gender-stereotypical clothing,
- An assortment of options to reduce restrictions on dress and permit comparable styles regardless of gender or sex, or body size,
- Not requiring additional physical appearance grooming expectations that are more onerous for women than men, including hairstyles, and other stereotypical expectations of females or males, and,
- A process for handling dress code-related accommodation requests and complaints.
These standards should be able to be uniformly observed in a work environment. There are specific standards for attending court discussed later. Keep in mind that Quebec’s Bill 21 (the so-called “secularism” law) has discriminatory impacts on Muslim women lawyers.
Racism & Dress Codes
Racism can be explicitly expressed in a written dress code and/or how it is enforced. However, there are many examples of racialized and Indigenous persons wearing suits and other professional dress but still experiencing racism. Some women also report being addressed as the assistant, clerk, and so on, despite wearing professional wear. In this way, adhering to a dress code still does not guarantee that one is accepted or recognized as belonging in the profession.
Clothing is also deployed to demonstrate ability to “fit” in a legal workplace. As Dean Kim Brooks writes, “[o]ther lawyers deliberately use their choice of clothing to fit in. For example, Reagan [one of the interview subjects] observes with satisfaction that other lawyers will ask her “[w]here do you get shoes like that?” and Elizabeth lists having polished shoes and always looking good as among the reasons she believes she was hired as legal counsel.” (Kim Brooks, “The Daily Work of Fitting in as a Marginalized Lawyer” (2019) 45:1 Queen’s LJ 157).
Courtroom Attire
Robes are required when lawyers appear in court. Once the lawyer licensing process is complete, candidates must still attend a call to bar ceremony in order to become a lawyer. In order to attend this ceremony, candidates must purchase or rent legal black robes including a black waistcoat or vest, a white wing tipped shirt, and tabs. These requirements are outlined by the LSO.
Robes are typically not required when lawyers appear in the following settings:
- Before administrative tribunals
- In the Ontario Court of Justice
- In case conferences, pre-trials, or assignment court in the Superior Court of Justice
Typically, a motion in the Superior Court of Justice requires that lawyers wear robes.
Many lawyers consider the traditional and required dress of robes in the courtroom to be an equalizer that limits potential discrimination by judges, clients and others in the room. Gowns may operate to remove age discrimination, gender and biases that lawyers may face in court. Others believe that the robes pose barriers in communicating effectively with clients because they may be intimidating and reduce lawyers’ approachability.
Reflection Questions
- In your view, would removing gowns make lawyers more approachable, or create additional grounds for discrimination or inequity? See Jacques Gallant, “‘My God, those things get hot’: Is it time for lawyers to ditch the black robes?” (Toronto Star, March 17, 2019), online: https://www.thestar.com/news/gta/2019/03/17/my-god-those-things-get-hot-is-it-time-for-lawyers-to-ditch-the-black-robes.html.
Robing Rooms
In part due to recent petition initiated by Breanna Needham and Fay Faraday, Osgoode Hall has eliminated gender-based change rooms and created one, gender-neutral room. The intention behind this change was to create space in the profession for people from a variety of backgrounds regardless of gender, sexual orientation and faith. The neutral robing room permits informal networking, an option that had been more readily accessible to men. Read the CBC coverage here.
Robing While Pregnant
Pregnant lawyers have long struggled with accommodations related to robing. Practices related to pregnancy and robing vary widely across Canada. See the Canadian Bar Association’s report.
