The issue of employers requiring waitresses to wear sexually revealing outfits is starting to spill out of restaurants and into the courts and news. Recently, Toronto’s Bier Markt chain was in the news for requiring waitresses to wear tight, sexually revealing clothing. Earlier, Andrea Mottu of Victoria won a settlement from her employer after it required her to work in a bikini top.
Cases in which organizations require waitresses to wear sexually revealing outfits are poised to create an onslaught of human rights and sexual harassment cases across the country. Most recently, a CBC Marketplace story on waitress uniforms further exposed this issue, resulting in one chain, Earls, saying it was changing its dress code to allow waitresses to wear pants if they chose to do so.
Much of the discussion has centred on sexy waitress dress codes constituting a human rights breach. However, it is more than that — employers requiring such uniforms constitute an institutionalized form of sexual harassment, in addition to being a breach of human rights (discrimination of women).
Walk into any of the many premium-casual restaurants (such as Milestones, Earls, Cactus Club or Moxie’s) and you will see that waitress-wear has changed with the development of a pseudo-sophisticated restaurant segment aimed at selling dinner with a side of sexual innuendo.
In an attempt to differentiate themselves as more “upscale,” businesses have looked to the entertainment industry as a model to emulate with the hope of attracting a nightclub clientele of young professionals, typically without dependants, who have greater discretionary income and are looking for entertainment options.
But why do we care? If waitresses want the job and everyone wants to have a few drinks and objectify each other, why should we take issue with this? The fundamental issue at hand is this is a workplace, and Canadian workers are bound to and protected by employment laws — even if these laws restrict business activity that employees and patrons would like to engage in.
Now, the sexy waitress phenomena is nothing new — Hooters has been in Canada for decades. And it at least provides a clear moral position, which waitresses accept and join willingly, much like any other employee hired into the legal adult entertainment business — waitresses are hired to be gawked at by patrons while delivering food.
The challenge is that while premium-casual waitresses have been hired to sell and serve food to families, their employers have instituted dress policies that require them to wear clothing intended to objectify them. In short, the restaurant has hired waitresses and then forced them to be objectified and, in so doing, it is engaging in a systemic form of sexual harassment.
Sexual harassment is any behaviour of a sexual nature that takes place at work that either is considered unwanted by the person affected or would be considered as objectively unwelcome behaviour by a third-party observer.
A judge considering the issue of these outfits will ask: What is the rationale for better food service derived from requiring waitresses to be scantily clad? The answer: There is none. As such, the judge would determine the rationale for this outfit is to objectify the waitress, making it a form of sexual harassment.
Now some might say this is not sexual harassment since the waitresses have agreed to wear these outfits. But have they really agreed or have they been coerced to because they need a job? If they have been coerced, they are not voluntary participants, which is the essence of sexual harassment. If an employee is coerced to engage in sexual relations with her boss out of fear of losing her job, that is sexual harassment. Similarly, if a waitress is coerced into sexually revealing clothing that makes her feel uncomfortably exposed, that too is sexual harassment.
This leads us to the second issue: Requiring waitresses to be scantily clad is a violation of their human rights. Such requirements provide a vehicle for employers to discriminate against women in two key ways. Firstly, because men and women dress differently, and because societal norms place a greater emphasis on a woman’s physical appearance, the dress requirements for male and female staff are more likely to sexualize women. In short, any situation where female waitresses are required to wear different and more sexually revealing outfits than men will be considered a form of discrimination based on gender.
The more subtle and malicious form of discrimination is when restaurants deny employment to waitresses because they do not “fit” the physical profile sought. In short, when waitresses are not hired or have their employment compromised because of their physical appearance, they are being discriminated against based on their gender. A waitress who is not hired because she is not “sexy” enough or fired for not having the right body shape — as in the case of a New Brunswick casino waitress in 2012 — can bring a gender discrimination case before a human rights tribunal on the basis that the same standard is not applied to men. The requirement to be “sexy” ends up being the explicit or implicit requirement for the job that is applied differentially to female employees, making it discriminatory.
So, where do we go from here? If sexy uniforms are both a form of institutionalized sexual harassment and a violation of human rights, how will the laws put in place to protect women be enacted? Firstly, as more and more waitresses or women who have been denied work bring human rights cases forward to human rights tribunals across the country, restaurants will start to take notice.
Secondly, a group of waitresses in a restaurant will come together to issue a sexual harassment complaint against their employer, electing to file sexual harassment claims with health and safety tribunals. Recognizing that these tribunals have the power to shut employers down for violations, the risks for employers may just be significant enough for them to reconsider the practice of requiring waitresses to wear sexy uniforms.
Angus Duff is an assistant professor of human resource management at Thompson Rivers University in Kamloops, B.C. He may be contacted at firstname.lastname@example.org.
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