In celebration of International Women’s Day on March 8, 2016, the Ontario Human Rights Commission released a policy statement calling for an end to sexualized workplace dress codes that discriminate. OHRC Chief Commissioner Renu Mandhane was cited :
“Employers must make sure their dress codes don’t reinforce sexist stereotypes. They send the message that an employee’s worth is tied to how they look. That’s not right, and it could violate the Ontario Human Rights Code.”
In the OHRC’s policy statement, specific reference was made to Canada’s service industry, where restaurants and bars may require female employees to adopt a sexualized dress code complete with high heels, tight skirts, low-cut shirts and make-up.
But how could a dress code amount to discrimination?
In Canada, discrimination is illegal if it differentiates between two individuals or groups based on grounds protected under human rights legislation. These protected grounds include race, religion, sexual orientation, age and of course sex.
In the restaurant and bar industry, an employer will have two groups of servers: men and women. In some of these establishments, men will have a dress code of dress pants and a collared shirt, while female employees will be required to dress in a sexualized or gender-specific way. This sexualized dress code creates a unique working condition that is imposed only on women.
Further, this type of dress code may make women vulnerable to sexual harassment from clients and co-workers. While service staff are expected to be pleasant and friendly with patrons, this does not extend to accepting unwanted solicitations, jokes or touching which may flow from a sexualized uniform.
Gender specific dress codes have been found to be discriminatory in Canada for over 30 years, although unfortunately they are rarely the subject of complaints and continue to be viewed as normal in many restaurants and bars. However, today there is little doubt that they violate human rights law. As stated in Mottu v. MacLeaod and others, 2004 BCHRT 76, a case dealing with a “beer barrel” server in a popular night club:
Dress code requirements based on sex have been found to constitute discrimination on the basis of sex. 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 […] constitute discrimination against Ms. Mottu in the terms of her employment based on her sex.
To justify a discriminatory dress code, the employer would have to successfully argue that it is a bona fide occupational requirement (BFOR) of the position. As I argued in a previous article on discrimination in the restaurant industry, I am deeply skeptical that such circumstances would satisfy the BFOR test.