British Columbia pushes for greater protection while Ontario says restaurant practices improving
Short skirts, tight-fitting outfits and high heels are still a common sight when it comes to wait staff at restaurants and bars. But is that appropriate? Or just? Or are greater restrictions needed to protect workers?
The Green Party in British Columbia believes the latter. On March 8, Andrew Weaver, MLA for Oak Bay-Gordon Head in B.C., introduced a bill in the legislature that would amend the Workers Compensation Act “to prevent employers from setting varying footwear and other requirements based on gender, gender expression or gender identity. As a result, for example, this act would prevent employers from requiring select employees to wear high-heeled shoes.”
The move followed reports of female workers being forced to wear high heels in the restaurant industry, said Weaver, along with a petition in the United Kingdom, which was debated in parliament, to end sexist high-heel dress codes.
While B.C. premier Christy Clark voiced her support for the bill, it died when the legislature adjourned. (The B.C. legislature won’t sit again until after a provincial election on May 9.)
But Angus Duff, assistant professor of HR management at the School of Business and Economics at Thompson Rivers University in Kamloops, B.C., doesn’t think this kind of legislation is necessary.
“Firstly, if wearing high heels is unsafe — say because the restaurant server has to walk in the kitchen where the floor can be wet or slippery — we already have health and safety laws that give employees the right to refuse unsafe work,” he said.
Secondly, if wearing heels is physically painful for workers, they would have the right to request more comfortable shoes and the employer would have a duty to accommodate.
“If somebody has sore feet and can’t wear certain shoes, that would fit into the idea of disability.”
Thirdly, an employer can’t require women to wear high heels if male employees and managers are not required to do so as well, said Duff. “That would constitute discrimination.”
The best alternative is to communicate to workers that if they request to wear flats and are denied, they may pursue a human rights complaint, he said. And for employees who fear some kind of reprisal from the employer, there’s the option of making a health and safety complaint.
“Servers who are forced to wear heels against their will could submit a health and safety complaint anonymously and have investigations triggered the same way.”
Dress codes that require women to wear high heels would be prima facie discriminatory under human rights legislation, so there’s probably no need for stand-alone legislation in relation to high heels or gender or sexualized dress codes, according to Renu Mandhane, chief commissioner of the Ontario Human Rights Commission (OHRC) in Toronto.
“That said, it’s always good to make the requirements as clear as possible, and if that requires legislation, that’s great,” she said.
“Certainly, (B.C. has) started a public debate around these issues, and public awareness around these issues, that I think is in many ways more important than the legal obligations. It’s that people understand these really pervasive and almost normalized forms of discrimination that we see in our society, even in 2017.”
There are some people who still think this isn’t a big deal, and if a woman doesn’t want to wear a gendered or sexualized dress code, then she should just work somewhere else, said Mandhane.
“That recognizes in many ways these employees don’t have a lot of power — this is generally low-skilled, low-wage work — and so often (employers) can find somebody else who is willing to wear the prescribed dress code.”
This issue involves people who are in a very vulnerable position, with their employment potentially being terminated, said Andrew Monkhouse, senior lawyer and founder of Monkhouse Law in Toronto.
“From an academic perspective, to be clear, a prohibition on discriminatory dress codes already exists under the Ontario Human Rights Code, and the tribunal has enforced cases for discriminatory clothing, so it exists. But there isn’t a great deal of knowledge about it, so if something was to come out that would increase knowledge, that would be useful.”
It would be more useful if dress codes were included in employment standards so a worker could go to the Ministry of Labour with a complaint, he said.
And when it comes to safety, people are actually getting notes from their doctors saying they shouldn’t wear high heels for a month or two.
“You end up with... this bizarre subset where people are getting medical notes to get out of workplace policies that are discriminatory,” he said.
A third aspect concerns anti-harassment and bullying, according to Monkhouse.
“(These dress codes) often promote a sexualized work environment… which obviously can lead to higher instances of workplace sexual harassment and workplace bullying because there’s the dichotomy or difference between the different groups, and people treat it in a sexualized way because they’re forced to dress in a certain way. There’s a certain control people feel over their employees, which I’ve found too often increases the chances of harassment, up to and including sexual assault.”
Research has shown gendered dress codes heighten the risk for sexual harassment in the workplace, said Mandhane at the OHRC, which released a policy statement on the issue in 2016.
“What might seem like not that consequential are really important risk factors for bigger problems... So it’s also (about) expanding our conversation about this so people understand this isn’t just about clothing, it’s about the kind of work environment that you’re creating for your employees.”
But there are many people who would like to wear heels, so why should the state outline the way people dress? said Duff.
“What we need to do is allow people to have choice in the shoes that they deem most appropriate for the work that they’re doing,” he said.
“I don’t think the state has any place in dictating what people wear, whether it be shoes, whether it be skirts, whether it be a hijab, whether it be a burka.”
While a requirement for high heels would be considered sexualized dress code, the issue can get into a murky area when it comes to choice, according to James Rilett, vice-president for Ontario at Restaurants Canada in Toronto.
“Many times, people like to dress up for their shifts, so it’s a balance. You can’t say, ‘You can’t wear high heels’ but you also don’t want to say, ‘You have to wear high heels’ or anything else for that matter,” he said.
“I wouldn’t want to say whether it’s unsafe or not because that would be up to WSIB (Workplace Safety and Insurance Board) officials to make that determination but overall… do you want to restrict people from wearing what they want? In most cases, people that wear high heels do it because they like to wear high heels, and do you want to tell them they can’t?”
In many ways, the fundamental principle is that you need to have a range of options that allow different people, however they identify, to feel comfortable and safe at work, said Mandhane.
“And that’s a very simple way of saying you need to have a dress code that’s inclusive. That doesn’t mean that companies can’t have a certain look or feel or style that they want to reflect their brand, but it does mean that they need to have flexible options.”
The OHRC is not trying to say there should be a ban on high heels, but that dress codes should provide a range of gender-neutral options, said Kathryn Meehan, labour lawyer at Hicks Morley in Waterloo, Ont.
“They’ve provided a sample, a gender-neutral dress code policy, and it indicates that positions should include a pants option. So taking an options approach on the part of employers can reduce the likelihood of a complaint on the basis of sex discrimination or it could be gender identity, gender expression — those are protected grounds under the code as well.”
The commission is focusing on choice and providing options, she said.
Choice is obviously good, said Monkhouse, “but it should be a genuine choice, not just a fake choice — it shouldn’t be the rule of the masses.”
One challenge in the service industry is the lack of written policies, which makes them difficult to enforce, he said. And there’s not much of an HR group at the smaller restaurants.
“It’s usually left up to bar managers, assistant managers, who don’t have extensive human resources experience — they’re more focused on the bottom line potentially, or what they see as being an image for the bar, which leads them to ignore potential violations because they have a different focus that isn’t employee-focused.”
Ontario checks in with restaurants
But advances are being made, according to Ontario’s human rights commission, which released a report in March outlining the commitments made by many restaurant chains to eliminate discriminatory dress codes.
All of the restaurants contacted by the commission are either developing new policies or amending existing ones, according to Not on the Menu: Inquiry Report on Sexual and Gender-based Dress Codes in Ontario’s Restaurants.
In general, companies expressed support for addressing dress codes, sexual harassment and other human rights concerns in their workplaces.
But the OHRC is encouraging companies to take the next step by putting these policies into practice on the ground and making sure employees have the opportunity to bring forward complaints if they think their rights have been violated.
The commission also developed a set of frequently asked questions or FAQs, said Mandhane, because “some restaurants said, ‘Of course, we want to comply with our legal obligations, but we don’t know exactly where the line is to be drawn between having a permissible dress code versus one that may be discriminatory on the basis of sex or gender identity or even creed.’”
It’s an issue that’s not just limited to the restaurant industry, said Rilett.
“All of society is looking at things that they’ve done for years and saying, ‘Should we do things differently?’ or ‘Is this right?’ or ‘Do we need to look at the fairness of things we’ve never questioned before?’ So it’s part of a growing society and we know that not everything that’s always been done in the industry has always been positive,” he said.
“And I think, if you look around in the industry, it’s nowhere near where it was even five years ago, so changes are happening — maybe not as fast as they should, but they are coming.”