Now is the time for stronger laws when it comes to sexualized dress codes (Guest Commentary)

They contribute to unwelcome, discriminatory environment, often in precarious jobs
By Debora De Angelis
|Canadian HR Reporter|Last Updated: 04/01/2016

The Ontario Human Rights Commission (OHRC) has issued a warning to employers that sexist dress codes requiring female staff to wear high heels, short skirts, tight clothing or low-cut tops as part of the job could be a human rights violation. The OHRC issued a policy paper on March 8 to coincide with International Women’s Day, calling for an end to workplace dress codes that discriminate. 

Sexualized and gender-specific dress codes are all too common in restaurants and bars, and can be found in other services as well. Whether in formal policy or informal practice, they contribute to an unwelcome and discriminatory employment environment for women. 

Employers do have a right to have a policy on dress codes, but only if it does not violate the Ontario Human Rights Code.

“Employers must make sure their dress codes don’t reinforce sexist stereotypes,” said Renu Mandhane, chief commissioner of the OHRC. “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.”

Unions have always fought for the elimination of sexual harassment and discrimination in the workplace, so we applaud the OHRC for their policy and for helping to raise awareness on this issue. 

But while the law says workers can make a complaint and the code protects them from reprisal or threats of reprisal, the reality is that if it is a non-union workplace, workers could very well see their hours cut back or their jobs terminated altogether. 

For example, after experiencing sexual harassment while working in a non-unionized retail store, I complained to my employer. When the employer had to lay off workers, I was the first one to go (even though I had more experience and years of employment than others who were not laid off). 

I was never re-called back to work. I understood my termination by the employer as a reprisal for my complaint, and without any employment, I filed a complaint under the code. 

Workers in precarious employment — which by definition includes people in temporary and contract work, along with those with uncertain work schedules, irregular earnings, inconsistent hours of work or jobs without benefits — do not have the economic power to stand up to their employer to ask them to bring their dress code policy into line with the code. 

In these industries, management makes all the decisions on who works the best shifts, how many hours people work and — depending on how much the management likes them — if they are even on the schedule. If management wants to punish someone, they don’t need to fire him, they simply keep him off the schedule until he has no other choice but to look for a new job. 

Often faced with this reality, non-union workers — and precarious workers in particular — can find themselves having to choose between making a complaint or keeping their livelihoods. What would you choose?

A complaint-based system, which requires workers to make a complaint about their working conditions, will not result in the kind of outcome every worker deserves. 

What would work is a system that does not depend on complaints but on enforcement. 

Employers have a duty under the code to remove barriers to women’s full and equal participation in employment, take steps to prevent sexual harassment and respond to it quickly when it occurs.

As part of the Ontario government’s 2015 Action Plan on Sexual Violence and Harassment, changes to the Occupational Health and Safety Act (OHSA) are being proposed which, if adopted, will strengthen existing obligations of employers to prevent and respond to sexual harassment.

Sexist dress codes are not only a human rights issue in the workplace but a workplace safety issue as well. If the government wants to ensure precarious workers do not have their human rights or workplace safety rights violated with sexist dress codes, they could, under OHSA, ask employers (as part of their obligation to keep workers safe and free from workplace violence and sexual harassment) to ensure dress codes are not contributing to the sexual harassment of staff.

Although the minister responsible for women’s issues, Tracey MacCharles, has indicated new laws are not the best way to address this issue — because she preferred to focus on businesses that were taking proactive steps to implement fair policies — enforcement through law may be the only solution.

UFCW Canada (United Food and Commercial Workers) represents members in restaurants who have a grievance procedure, which is a vehicle to have their issues addressed in the workplace.  

Through this procedure, workers are represented by a UFCW representative who enforces the contract, as well all the relevant workplace legislation in the province, including the code and the OHSA.

This is a system where workers do not have to fear reprisal and worry about making a choice between their economic livelihood and their human rights. Employers that do not review existing dress codes and remove discriminatory requirements may find workers calling the union, with the union using its resources and expertise to fight for, and protect, their rights.  

The Ontario Human Rights Commission is showing true leadership by taking this important step forward. 

Now, we just need the Ontario government to follow suit by further empowering workers to be a force for greater equality and fairness in our workplaces.

Debora De Angelis is the national co-ordinator of strategic campaigns for the United Food and Commercial Workers (UFCW Canada) in Toronto.

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