Reasonable Doubt: Summer is coming and so are sexualized dress codes

Uncomfortable with your dress code? You can fight back

This week’s column comes from guest writer Priya Sarin, who is a partner with the Toronto-based employment law firm Whitten & Lublin.

The hospitality industry is notorious for imposing dress codes on female bartenders and servers, requiring them to wear revealing or skimpy outfits and high heels. Their male counterparts are, of course, not asked to do the same. These gender-specific dress codes are not only discriminatory, but they create an unsafe working environment for people who are teetering in impractical footwear and vulnerable to unwanted sexual attention from sometimes inebriated customers or management.

Over the past year, there has been heightened awareness in Ontario’s hospitality industry that the existing norms regarding sexualized dress codes will no longer be acceptable. It’s about time, but not everyone has gotten the memo.

Accordingly, in March of this year, the Ontario Human Rights Commission (OHRC) issued a new written policy on gender specific dress codes to make it abundantly clear that women should not be expected to dress in a sexualized manner and that policies which treat men and women differently, for reasons unrelated to the requirements of the job, will be found to be discriminatory and in breach of the Human Rights Code. This means you can’t be required to wear a short skirt if your male coworkers are permitted to wear pants or shorts.

The OHRC refers to its policy as a “call to action” and encourages women to challenge sexist dress codes. Practically speaking, this would involve writing to your employer (jointly with your co-workers, or individually) to express your concerns. If your employer does not respond in an appropriate manner (i.e. by cutting your shifts or telling you to go find a job elsewhere), you could file an application with the Human Rights Tribunal of Ontario claiming discrimination. Ideally, however, your employer would sit down with you to discuss a reasonable alternative to the offending aspects of the dress code.

To be clear, nothing in the OHRC’s policy states that you can’t wear sexy clothes if you want to. The issue is that you shouldn’t be forced to dress in skimpy clothes in order to keep your job. Additionally, a dress code should not prevent you from participating equally in employment. Sexualized dress codes may have the effect of creating barriers to employment for some individuals on the basis of sex, gender identity or religion. This is also considered discrimination under the Human Rights Code.

Despite the fact that the Tribunal has expressly recognized the problems with gender-specific dress codes for more than 20 years, it is shocking to discover that there are less than a handful of cases in Ontario where women have challenged sexualized dress codes. The prevailing opinion as to why this number is so low is that women are afraid to complain for fear of losing their jobs. While this fear may be justified, there can be serious consequences to owners of bars and restaurants who penalize a woman for asserting her rights.

For example, in McKenna v. Local Heroes Stittsville, the Tribunal found that a pregnant employee was discriminated against when her shifts were reduced after challenging the employer’s dress code. The new dress code required her to wear a tight lycra shirt, which drew attention to her pregnancy. The employee in that case was awarded lost wages for a period of four months and $17,000 for injury to her dignity, feelings and self-respect.

In addition to facing potential liability under the Human Rights Code, employers in Ontario could be held liable for breaching workplace safety standards if they directly, or indirectly, force women to “dress sexy.” Recent amendments to the Occupational Health and Safety Act (OHSA), which come into force on September 8, 2016, require employers to develop policies and programs to prevent sexual harassment in the workplace. Employers in the hospitality industry should be reviewing their dress codes to ensure that they do not, in fact, have the opposite effect of creating an environment that encourages sexual harassment.

OHSA also requires employers to take “every precaution reasonable in the circumstances for the protection of a worker.” It seems obvious to state that the potential for workplace injury to a woman working as a server in a tight dress and high heels would be increased, where she is on her feet for hours at a time and possibly carrying heavy trays up and down stairs. Restaurants and bars that force female staff to wear high heels should think again. Corporations who breach the provisions of OHSA could be hit with a fine of up to $500,000.

While the Tribunal has received relatively few complaints regarding sexist dress codes over the past decade, it seems that this is about to change. Bier Markt was recently on the receiving end of a human rights complaint regarding its discriminatory dress code policy and Earls, Moxies and Joeys all received bad press in relation to their sexualized dress codes in March of this year. Bier Markt and Earls responded quickly by revising their dress codes to provide female staff with a range of clothing options, including the option to dress in a similar manner to their male coworkers.

Hopefully, other restaurants and bars will follow suit by voluntarily reviewing and revising their dress codes to ensure that they are not placing their female staff at increased risk of harm and by providing women with the option to dress in a less revealing manner. This is especially so now that it’s patio season and the warm weather uniforms are here. We need to remember that the women working in these jobs are our mothers, daughters, sisters and friends. Their job is to serve you food and drinks, not their bodies. Forcing women to dress in a sexualized manner is an affront to their human dignity.

Priya Sarin is an employment lawyer with the Toronto firm Whitten & Lublin. Reasonable Doubt appears on Mondays.

A word of caution: You should not act or rely on the information provided in this column. It is not legal advice. To ensure your interests are protected, retain or formally seek advice from a lawyer. The views expressed in this article do not necessarily reflect those of Whitten & Lublin PC or its lawyers. | @nowtoronto

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