The service industry is notorious for a number of questionable practices. Some of the things that make working in a restaurant or bar uniquely liberating and exciting also create employment scenarios that are particularly susceptible to abuse. The service industry operates very heavily in cash, usually includes a flexible work schedule, and is extremely dependent on the freedom for businesses to create the exact aesthetic and customer service experience they desire. A good portion of the work does not require a formal education, so companies can pick and choose who to train and hire based on particularly nebulous qualifications. Often, they ask themselves, “From whom would my customers want to order food and/or drinks?” Great customer service is clearly dependent on a sparkling personality and great people skills. However, when physical appearance becomes a determining factor in who gets employed and how they are treated, restaurants and bars find themselves in clear violations of both peoples’ rights and common decency.
How often have you found yourself in a restaurant or bar, only to note that most or all of the servers are young, attractive women? These situations are consciously crafted by business to create a very specific kind of atmosphere. However, any honest consideration of the scenario reveals several inherent injustices and abuses. Many companies mandate attire that would be inappropriate in any other workplace, dictating details like exactly how tight a dress should be, which high-heeled shoes to buy, or how hair should be worn. Again, this kind of behavior is not only unthinkable in other industries, but exclusive to one gender. Men almost never, if ever, find themselves asked to hold themselves to the same demeaning standards when it comes to their appearance.
Recently, a group of female servers in Edmonton published a website designed to host concerns and complaints of both customers and employees about these sexist and dehumanizing rules. The mainstream media even covers the topic every so often. Legislation, however, has been very slow in addressing whether these workplace practices violate human rights protections. Several issues warrant consideration.
First, it matters if the women are being treated differently than the mend. Does the dress code demand something more or different from the female employees than their male counterparts? Additionally, whether the men are asked to do so as well or not, does leveraging employees’ sexuality to sell goods constitute an actionable human rights offense?
Secondly, to what extent are hiring decisions impacted by age and/or gender?
Third, and closely related, is whether those employment choices are influenced by physical attractiveness or, perhaps even more problematically, a lack thereof.
An additional concern is if and how dress codes may violate religious freedoms, given that certain faiths prohibit the exposure of parts of the human body.
In 1987, the Ontario Divisional Court touched on this issue in Ontario Human Rights Commission v Chrysalis. The Commission argued that the employer, a disco bar, did not have the right to require female waitresses to wear sexually revealing apparel. Their case hinged on the severe distinction between the male and female dress codes, the latter of which was much more sexually provocative.
The submission failed before the Board of Inquiry, as well as in a subsequent judicial review. One of the main conclusions was that the required manner of dress, or “uniform,” was not unduly revealing or so ‘immodest’ as to re-classify the waitresses as entertainers. The Divisional Court, however, did find that the Board erred in its determination of the test to be applied in an argument of discrimination based on gender.
The true issue at hand, then, is not just whether the dress requirement was abusive, but if it was imposed equally on males and females. The Board’s definition of adverse treatment due to gender, which was not exhaustive, is 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 Divisional Court’s majority decision also found that there may be circumstances due to gender in which the “uniform” of the women was in no way related to the function of the job outside of its 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.
The words create an opportunity for complaints based on requiring a dress code that increases a female worker’s exposure to the risk of sexual exploitation. Might a low slung, short black dress meet this test? Maybe, but maybe not.
The Divisional Court went on to state that “normal social norms” are 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 required 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 conclusion, then, is that a dress code that subjects women workers to sexual harassment and “accepted social norms” do not make the test, summarized by the court as follows:
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, argued that the Code will not allow the “accentuation of an employee’s sexuality,” writing:
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.
Somewhat shockingly, this dress code issue has not reappeared with any sort of regularity in the intervening years between that case and today. Submissions which argue gender discrimination, as was made then, did permit for the real human rights concerns like sexual exploitation to be made evident. Sexual exploitation actually reigns as the primary concern over the differing standards between gender – such a dress code would still clearly be unacceptable if it equally exposed both men and women to sexual exploitation. As White J. stated in dissent, the dress requirement should “preclude the accentuation of an employee’s sexuality.”
The British Columbia Human Rights Tribunal (MacNaughton) addressed these issues in 2010 with Bil v Northland Properties on a motion to dismiss, one of which is based on allegations made in the complaint without affirmative evidence from either party, precluding reasonable cause of action. The complainant claimed that she was required to wear high-heeled shoes, miniskirts, full make-up, and show cleavage to exude both “class and sex appeal.” The employer, known as “The Shark Club,” also stated in the training manual that female servers should wear their hair down.
When rejecting the motion to dismiss, the Tribunal did employ the gender biased treatment analysis and found that overly sexualized dress codes could in law be understood as adverse treatment due to gender. It also noted the Supreme Court decision in Janzen v Platy Enterprizes. In that case, two waitresses employed by Pharos Restaurant complained about sexual harassment at the hands of the restaurant’s cook. Although they communicated their plight, the owners failed to take corrective action. The Manitoba Human Rights Commissions consequently found that they were both victims of sex discrimination, a decision upheld by the Court of Queen’s Bench.
Because this case was with the original legislation in Ontario, the Manitoba statute did not specifically refer to sexual harassment as a grounds of discrimination. Therefore, 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. So, the case required a finding that sexual harassment was actionable based on gender discrimination.
Oddly enough, the Manitoba Court of Appeal reversed and determined that the offensive conduct in question was actually based on the attractive personal appearance of the two complainants and not on gender – therefore, there was no actionable discrimination. These words appear incongruous today.
Twaddle J.A. stated that sexual harassment based on the “sex appeal” of the complainants did not qualify as 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.
On this specific point, Chief Justice Dickson was extremely direct and biting in response:
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 employed the Supreme Court of Canada decision that “sexual harassment is sex discrimination” based on a gender difference. This understanding offers a more logical argument it rationalize the real issue as well, particularly that when the employer uses sexual attractiveness in conjunction with its dress code, the company is essentially sexually exploiting these women for commercial purposes.
The Chief Justice was, ironically, exactly correct in stating, “sexual attractiveness cannot be separated from gender.”
In regards to the systemic overemphasis on hiring young females, it is clear that demographic pattern reveals a clear violation of the Code. However, in terms of making hiring decisions based on personal attractiveness, there is likely no barrier to doing so. To be denied a position due to a disability, like a facial disfigurement, would be a different situation. Similarly, if your religion prevents you from wearing revealing clothing, further argument can be made.
The absence of case law on this subject is truly odd. Moving forward, this barren realm of legal precedent could, and should, change.