Speaker's Corner: Ontario needs case law on sexy dress codes

Have you been in a restaurant or bar lately and felt you had inadvertently walked into a place where they provide sexual services?

If you have, you’re not the only one. In Edmonton, a group of female servers has established a web site to allow for consumers and employees of such establishments to voice their concerns with respect to such an apparent code requiring short, low-slung black dresses.

In the legal sphere, the 1987 Ontario Divisional Court decision in Ontario Human Rights Commission v. Chrysalis Restaurant Enterprises Inc. was an early case to touch on the issue. The commission brought the complaint against the employer, a disco bar, due to the alleged sexually revealing nature of the apparel required for the female waitresses. The argument centred on the apparent distinction between the male and female dress code as the former did not require men to dress in such an allegedly provocative fashion.

This submission failed before the board of inquiry and also at the subsequent judicial review. Among the fatal findings made at the board level against the complainants was the fact that the required manner of dress was not unduly revealing or so “‘immodest’ or ‘sexist’ as to transform the waitresses into entertainers.”

The Divisional Court, however, did agree that the board had erred in its determination of the test to apply in an argument of discrimination based on sex.

The majority decision of the Divisional Court noted there might also be circumstances due to gender in which the uniform worn by the females had no relationship to the job except for a 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,” the court stated.

Those words opened the door to a complaint based on a dress-code requirement that likely exposes a female worker to sexual exploitation. Does a low-slung, short black dress meet that test?

The Divisional Court went on to state that “normal social norms” wouldn’t be an appropriate test. “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,” the court stated.

Amazingly enough, there has been a dearth of cases dealing with this issue over the years. But the submission in that case based on gender discrimination did allow the real issue to seep through: sexual exploitation, something that 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 simply be whether the dress code exposes the person to sexual exploitation.

The 2010 decision of the British Columbia Human Rights Tribunal addressed these issues in Bil v. Northland Properties on a motion to dismiss.

The complainant alleged she had to wear sleek high-heeled shoes, miniskirts, shirts showing cleavage, and hair and makeup done with “class and sex appeal.” The employer’s training manual also stated it preferred the female servers to wear their hair down.

In rejecting the motion to dismiss, the tribunal used the usual analysis around gender-biased treatment and concluded sexually based dress codes could in law be adverse treatment due to gender. It also referred to the seminal decision of the Supreme Court in Janzen v. Platy Enterprises Ltd.

In Janzen, two waitresses employed by Pharos Restaurant had complained about sexual harassment. They had voiced their concerns to the owner, who had failed to take any corrective action.

The Manitoba Human Rights Commission had found they were both victims of sex discrimination, a finding upheld by the Court of Queen’s Bench.

At the time, the Manitoba statute didn’t refer specifically to sexual harassment as a ground of discrimination with the complaint instead based on gender. The case thus required a finding that sexual harassment was actionable based on gender discrimination.

As to the systemic pattern of hiring young females, it is patently clear that such a policy is a human rights breach. That issue should not be difficult to decide.

But what of the argument that the hiring decision turns on the personal attractiveness of the female staff or, for that matter, the male employees?

There is likely no barrier to preventing a hiring decision based on the candidate’s physical attractiveness. A disability such as a facial disfigurement may present another argument.

Peter Israel, founding partner of Israel Foulon LLP, notes that early cases against Air Canada found the use of personal attractiveness in hiring decisions to be contrary to the federal human rights protections.

Barry Fisher, an employment law mediator, suggests it may be possible to simplify the issue by asking whether the employer would hire an attractive 60-year-old woman and mandate the same dress rule in the absence of which there would be an evident case of age discrimination.

Gillian Shearer of Shearer Lattal LLP suggests that mandating such a dress code is a risky proposition as “such establishments are not far off from professional sports cheerleaders in that they have the same workplace traits, namely a sexually provocative uniform, most clientele is male, and copious amounts of alcohol being served.
These factors create a workplace where sexual harassment or even sexual assault is predictable. Such employers must have diligent training on harassment or, better still, a new approach to the mandated dress code.”

It is odd that there is an absence of case law on this subject. Perhaps that will change. It should.   

David Harris, a former lawyer, is publisher of Employment Law Books (e-mploymentbooks.com) as well as author of Wrongful Dismissal, published by Carswell.

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