November 19, 2015
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Nelligan O'Brien Payne gratefully acknowledges the contribution of Jill Lewis, Student-at-Law, in writing this blog post.

The Bier Markt, a restaurant owned by Cara Operations Ltd., recently conceded to a female server who fought back against a sexist policy regarding work uniforms.

Bier Markt’s server uniforms used to consist of black pants, golf shirts and running shoes. In October 2015, a new policy required the female servers to wear a short cocktail dress made of thin, polyester material – “almost bathing suit-like according to one employee – and high heels. In contrast, the men were instructed to wear Gap jeans, long-sleeve button-ups and red Converse shoes.

With several locations across Ontario and Quebec, the restaurant received instant pushback from approximately 40 women from four different locations. Some staff quit when their concerns were left unheard; others were sent home for wearing sweaters or sneakers in protest. At least two former Bier Markt employees filed complaints with the Human Rights Tribunal of Ontario after resigning from their position.

Tierney Angus, a Bier Markt employee of almost four years, brought public attention to the issue by hiring a lawyer and contacting CBC’s GO Public. Bier Markt’s initial response to the complaints was that the uniforms were chosen to reflect the restaurant’s “stylish image”. However, after receiving a great deal of negative publicity, Bier Markt changed their policy to allow female staff to wear the male uniform should they prefer to do so.

Regardless of the policy being amended, the initial attempt at a new policy has led to acts of discrimination in the workplace and people losing their livelihood, consequently suffering financially on account of such discrimination. One of the claimants who filed a Human Rights complaint stated in an interview with CBC that sexualizing female servers is the norm and she hopes her complaint will challenge this status quo. The tribunal has yet to hear the complaint.

Servers’ rights under Ontario’s Human Rights Code

Under Ontario’s Human Rights Code (the “Code”), every person has a right to equal treatment with respect to employment, without discrimination based on sex (among other various grounds). Ontario courts have found that different dress codes based on a particular sex does in fact constitute discrimination.

According to the Ontario Human Rights Commission’s Human Rights at Work 2008, an employer may implement a dress code for employees so long as it complies with the Code. The guide specifically addresses sexualized uniforms:

Employers must make sure that any uniform policy does not undermine the dignity and right to full participation in the workplace of employees of either sex…[Employers should] not subject female employees to more difficult requirements than male employees, and [should] 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.

Another right afforded under the Code is freedom from reprisal. That is, an employer cannot punish or threaten to punish an employee for taking steps to enforce their rights under the Code.

If you are subjected to something from which your opposite-gender colleagues are exempt, you may be the victim of sex discrimination in the workplace. To find out more about your rights, call an employment lawyer!

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2017 Nelligan O’Brien Payne LLP.

Service: Employment Law