Have you been in a restaurant or bar lately and felt you had inadvertently walked into a bordello ? It is emphatically clear that many restaurants hire, particularly in the bar area, female servers who are young and attractive and that the employer mandates the attire and appearance of these employees, typically in a low cut short black dress, heeled shoes and hair worn down.
A group of Edmonton female servers have established a web site to allow for consumers and employees of such establishments to voice their concerns with respect to such a code. The same subject was the focus of Anna Marie Tremonte’s show on CBC Radio on April 8th, 2015.
British Columbia banned the mandatory wearing of high heels by a regulation under its Workers Compensation Act. Alberta is contemplating a similar provision. The Ontario Human Rights Commission has issued a policy statement that the requirement to dress in such a fashion could violation the Human Rights Act.
The law has been very slow in answering the question of whether such employment practices are in violation of human rights protections. There are a series of issues to be examined.
The first is whether the dress code imposes a different obligation on females as opposed to male employees and whether such distinction may be a human rights violation.
A subordinate argument, sometimes connected to the gender based dress code, really goes to the nub of the issue – is the restaurant or bar, in essence, using the sexual appeal of the servers to sell its wares – is this good, bad, indifferent or actionable as a human rights complaint?
The second question is whether the hiring decision is influenced by age and/or gender.
A third issue may be whether physical attractiveness, or perhaps more acutely, a lack of it, can be raised to the level of a human rights issue.
A further question could be whether the dress code is a violation of religious freedom, given a religion which sets restrictions on exposing parts of the human anatomy.
The 1987 Ontario Divisional Court decision of Ontario Human Rights Commission v Chrysalis, now approaching twenty years of age, was an early case to touch on this issue. It has not been referenced in any following decisions to date.
The Commission, as was then the process, brought the complaint against the employer disco bar due to the alleged sexually revealing nature of the apparel required by the female waitresses. The argument was based on the apparent distinction between male and female dress code, one which did not require the males to dress in such an alleged provocative fashion.
This submission failed before the Board of Inquiry and also in the subsequent judicial review. There were fatal findings of fact made at the Board level against the complainants, one of which was that the required manner of dress, referred to as a “uniform” was not unduly revealing or risqué and was not so “ ‘immodest’ or ‘sexist’ as to transform the waitresses into entertainers.”
The Divisional Court, however, did agree that the Board erred in its determination of the test to be applied in an argument of discrimination based on sex, that is sex in the sense of gender discrimination.
A review of this test will follow. One would expect, however, that the test of an offensive dress code would not be whether an abusive requirement was imposed equally on male and female alike.
The Board’s definition of adverse treatment due to gender, which was found not to be an exhaustive one, was stated as follows:
(1) that males and females perform the same or roughly similar work for the employer;
(2) that the employer has imposed a requirement on employees of one sex which is clearly more burdensome or exploitative than the requirement imposed on employees of the other sex;
(3) that the requirement in question lacks justification in “commonly accepted social norms”; and
(4) that the requirement is not proved (by the employer) to be reasonably related to the employer’s needs.
The majority decision of the Divisional Court noted that there may also be circumstances due to gender, in which the “uniform” of the females was one which had no relationship to the job, except the sexual connotation.
One can see a situation where there was discrimination on the ground of sex if only women were employed in that position but men were able to do the job and the uniform required had no relationship to the job except the sexual connotation. In E.E.O.C. et al. v. Sage Realty Corp. et al., 25 E.P.D. D7819981831,529 (1981), the United States District Court, Southern District of New York found that the imposition of a dress code on building attendants requiring them to wear a costume which knowingly subjected a female employee to sexual harassment and rude comments due to its sexually provocative nature constituted discrimination against her on the basis of her sex.
These words open the door for a complaint based on the requirement of a dress code which likely exposes a female worker to sexual exploitation. Does a low slung short black dress meet this test ? Perhaps not.
The Divisional Court decision continued to state that “normal social norms” would be an appropriate test, this again being stated in the context of gender discrimination:
Also, I can see that there could be discrimination even where the dress requirement for one sex was in accordance with commonly accepted social norms. One example is the situation in Carroll v. Talman Federal Sav. and Loan Ass’n of Chicago, 604 F. 2d 1028 (1979). There the male employees were reqired to wear normal business attire; the female employees to wear clearly identifiable uniforms. There the requirement of uniform, although one in accordance with commonly accepted social norms, was held to be discrimination because of sex.
The synthesis of this decision is that a dress code which subjects the female worker to sexual harassing conduct and that “accepted social norms” do not make the test, summarized by the court as:
The definition of discrimination in s. 4(4) that seems most appropriate is the one given in 14 C.E.D. (Ont. 3rd ed.), Title 74, s. 11, namely: “differential treatment as a result of which the victim suffers adverse consequences or a serious affront to a dignity”
White J., who dissented, stated that the Code will not allow the “accentuation of an employee’s sexuality”.
It is my opinion that the Ontario Human Rights Code does preclude the unequal application of a uniform requirement to different groups of employees based upon their gender and precludes the accentuation of an employee’s sexuality.
Amazingly enough, there has been a dirth of cases dealing with this issue over the years, whether the plea is based on gender discrimination or any other argument. The submission based on gender discrimination, as was made in this case, did allow the real issue to seep through, one which is really sexual exploitation and has nothing to do in reality with differing standards between genders. Would such a dress code be acceptable if it exposed both genders alike to sexual exploitation – clearly that would be an absurd result. The real question should be simply whether the dress code exposes the person to sexual exploitation or more fundamentally, as said by White J. in this dissent, the dress requirement should “preclude the accentuation of an employee’s sexuality”.
The 2010 decision of the British Columbia Human Rights Tribunal (MacNaughton) addressed these issues in Bil v Northland Properties on a motion to dismiss, one which is based on the allegations made in the complaint without affirmative evidence from either party, and hence similar to “no reasonable cause of action” in the civil world.
The complainant alleged that she was required to wear high-heeled sleek shoes, miniskirts, shirts showing cleavage and hair and make-up done with “class and sex appeal”. The training manual of the employer, known as “The Shark Club”, also stated that it preferred the female servers wear their hair down.
In rejecting the motion to dismiss, the Tribunal did use the usual gender biased differing treatment analysis and concluded sexually-based dress codes could in law be adverse treatment due to gender. It also referred back to the seminal decision of the Supreme Court in Janzen v Platy Enterprizes, which was a novel approach.
In Janzen, two waitresses employed by Pharos Restaurant had complained about the sexual harassment suffered by them by the cook employed at the restaurant. They had voiced their concerns to owner, who had failed to take any corrective action.
The Manitoba Human Rights Commission had found that they were both victims of sex discrimination, a finding upheld by the Court of Queen’s Bench.
As was the case with the original legislation in Ontario, the Manitoba statute did not then refer specifically to sexual harassment as a ground of discrimination and hence the complaint was forced to be based on gender. The Act was later amended to allow for a specific sexual harassment complaint prior to the decision of the Supreme Court, which was hence of academic note on this issue. The case thus required a finding that sexual harassment was actionable based on gender discrimination.
The Manitoba Court of Appeal reversed and, oddly enough, determined that the offensive conduct in question was based on the personal attractiveness of the two complainants, not gender and hence there was no actionable discrimination. These words appear incongruous in the modern context.
Twaddle J. A. stated that sexual harassment which was based on the “sex appeal” of the complainant did not constitute gender discrimination.
Although not conclusive, the sex of the victims and the sexual nature of the harassment is some evidence of the basis of their selection. There is, on the other hand, no evidence that women as a class were not welcome as employees or were subject to adverse treatment. On the contrary, the evidence discloses that at the restaurant in question women were the only employees other than the cook and the corporate officer. Another female employee testified that the cook touched her a lot by putting his arm around her or touching her neck, but she interpreted that as him being friendly… This evidence suggests that the complainants were chosen for the harassment because of characteristics peculiar to them rather than because of their sex. That is not discrimination no matter how objectionable the conduct.
This was the case which was presented to the Supreme Court of Canada. On this specific point, Chief Justice Dickson pulled no punches in stating his view:
To argue that the sole factor underlying the discriminatory action was the sexual attractiveness of the appellants and to say that their gender was irrelevant strains credulity. Sexual attractiveness cannot be separated from gender.
The Tribunal in Bil v Northland creatively used the Supreme Court of Canada decision to determine that “sexual harassment is sex discrimination”, that is based on a gender difference. That concept provides a much more logical argument to get to the real issue, namely, that the employer is using the sexual attractiveness, coupled with its dress code, to exploit these women for its commercial purposes.
Ironically, the Chief Justice hit the point in stating “sexual attractiveness cannot be separated from gender”.
As to the systemic pattern of hiring young females, it is patently clear that such a hiring policy is a clear violation of the Code. This one should not be difficult.
What about the argument that the hiring decision is based on the personal attractiveness of the female staff ? or for that matter, male employees?
The words of the Chief Justice, cited above, are out of context on this analysis. The case before him was the sexual harassment of two female staff. Here the question relates to the hiring decision.
There is likely no barrier to preventing a hiring decision based on the physical attractiveness of the candidate. A disability such as a facial disfigurement may present another argument.
A further argument could be made based on religious beliefs which do not permit the employee wearing revealing clothing.
It is odd that there is an absence of case law on this subject. Perhaps this will change. It should.
(An abbreviated version of this article appeared in the Law Times.)