Robins Appleby Barristers + Solicitors Logo

Details

Dec 9, 2015

Barbara Green on Canadian HR Reporter

By: Barbara Green

‘Revealing’ dress code prompts complaints

By Sabrina Nanji for Canadian HR Reporter

Negative publicity around an unpopular dress code has led a restaurant chain to withdraw its policy, raising the question: If it’s clearly a discriminatory practice, should others in the hospitality and service industries follow suit?

Two servers filed complaints against the Bier Markt restaurant chain with the Human Rights Tribunal of Ontario, according to the CBC, while Tierney Angus, a three-year server at the Bier Markt, retained a lawyer with the intention of filing a human rights complaint against her employer after it implemented a uniform policy consisting of skin-tight, revealing dresses.

The dress was manufactured by Vancouver-based Dirty Girls Uniforms, according to Angus’s lawyer, Barbara Green at Robins Appleby in Toronto. 

“(The dress) was tight and revealing, underwear lines were exposed through the dress, it was sleeveless, it was short. The first issue was the form-fitting nature of the dress.” 

The new uniform requirement for men further exasperated Angus and other female staffers.

“The other issue she disputed was the fact that the dress code for male servers was very different. It consisted of jeans, a conservative button-down shirt and Converse sneakers,” said Green. “So her concern was the skimpy nature of the dress that she was going to be required to wear and the fact that it contrasted with what the male servers were required to wear.”

The restaurant, owned by parent company Cara Operations (which also runs Casey’s, Kelsey’s, Montana’s, Harvey’s, Milestones, Prime Pubs, East Side Mario’s and Swiss Chalet), has since backed down and made adjustments to its uniform requirements, which apply to all Bier Markt locations in Ontario and Quebec. 

There are now additional options for women to cover up the dress, choose another one with a longer hemline or opt for a unisex version of the jeans-and-shirt outfit originally intended only for the male wait-staff. 

“We have made additional adjustments to the uniform specifications including adding options for additional footwear choices, hosiery, cardigans women can wear when they want, and an option for a longer length dress,” said Cathy Cowan, a spokesperson for Cara Operations.

But not all female staff shared Angus’s worry, and the uniform was vetted by a small group of female wait-staff.

“The new uniforms were selected to reflect Bier Markt’s stylish image and restaurant staff at various Bier Markt locations were closely involved in the selection process,” said Cowan. 

“Sample uniform dresses were provided to bartenders at one of our restaurants to wear and test over two weeks of busy service. Based on their feedback from this test phase, changes were made to the dresses to optimize comfort and functionality. Once finalized, each restaurant received a sizing kit to enable staff to try on the garments and select comfortable sizes.”

As of press time, Angus still worked at the Bier Markt. 

“I am relieved that Cara has offered alternatives to the revealing, skin-tight dress that leaves nothing to the imagination — especially in an industry where sexual harassment is rampant,” said Angus in a statement via her lawyer. 

“I was told that the sexy dress code was not designed to sexualize or discriminate against women, but I certainly felt degraded when baring my body to perform my duties. Women should not be forced to wear skimpy uniforms at work. It should be their choice whether or not to wear revealing attire.”

Not hearing of a problem doesn’t mean it doesn’t exist for other women in the hospitality industry, said Green. 

“Women’s bodies should not be used to sell burgers and beer. Employers need to recognize that they must comply with the standards set by the Ontario Human Rights Commission,” she said. “I hope that Cara’s positive response will elicit the same reaction in other employers in the restaurant industry throughout Ontario.”

In its 2008 document Human Rights at Work, the Ontario Human Rights Commission explicitly prohibited dress codes that discriminate based on sex. Employers, therefore, should be prepared to prove any sex-linked differences in the dress code are bona fide occupational requirements, it said. 

“Do not subject female employees to more difficult requirements than male employees, and do not expect them to dress provocatively to attract clients. It is discrimination based on sex to require female employees to wear high heels, short skirts and tight tops.”

While Green said she has come across cases of discrimination based on sex at similar employers as far back as the 1980s, her research did not unearth much in the way of precedent, specifically on dress codes. 

Most of the relevant and recent cases and case law only addressed the issue peripherally, she said. However, the human rights aspect of dress code is one employers should not take lightly.  

“This will not be the last time this issue will be brought up,”  said Green. “The issue is whether another employer will stick to its guns and say, ‘No, we want to have a determination made by a court or a tribunal before we change the dress code.’”

Sexist culture: Professor

Women in the service sector are too often subject to blatant and ingrained sexism in a field where they dominate the labour force, according to Pamela Sugiman, a professor and chair of Ryerson University’s sociology department in Toronto.

“Clearly, women are very much treated as part of the backdrop, as part of the scenery in the hospitality industry. And some things that one couldn’t get away with in other work contexts in such an explicit way seem to be taken for granted in the entertainment and hospitality industries,” she said. 

“At the same time, it is outright discrimination, a violation of people’s rights, blatant sexism — yet it just continues to happen.”

Work is work, by definition, so the servers at Bier Markt should enjoy the same rights as the rest of us, said Sugiman, adding unionization is one possible and attractive avenue for such employees. 

“Penalties can come in subtle, informal ways for not complying. There is still pressure on them to (wear the dress) because who knows what could happen if they don’t have any kind of representative or union representation.”

Angus attempted “self-help” remedies, according to her lawyer, such as covering up her shoulders by wearing a cardigan, but was told to remove it or be sent home. She also claimed her work hours were reduced and she was threatened with suspension.

“In sexualizing the bodies of young women and making them look very glamorous, it hides the fact that it is hard work, it is real physical drudgery in some ways,” said Sugiman. 

“It is also hard because it is emotional labour — you have to sell yourself, you have to sell your personality, in order to get a tip.”

© Copyright Canadian HR Reporter, Thomson Reuters Canada Limited. All rights reserved.


To see more Canadian HR Reporter articles visit http://www.hrreporter.com



Related Practice Areas

Litigation & Dispute Resolution

Keywords

''HR Reporter''  |  Cara  |  Bier  |  Makt  |  uniform  |  sexist  |  Human Rights

Robins Appleby Barristers + Solicitors Logo and Wordmark

Robins Appleby LLP Suite 2600, 120 Adelaide Street West, Toronto, Ontario M5H 1T1
E. info@robapp.com T. 416.868.1080 F. 416.868.0306

Member of:
LNA