March 24, 2016 By: Alison McEwen

Ottawa restaurant Union Local 613 caused a stir two weeks ago when its male servers donned miniskirts and high heels in part to show solidarity for women who are required to project a sexy image on the job. From the reports, none of the men lasted more than an hour in the heels. While the actions of the restaurant were not perfect (there was some criticism initially that the move might shame those who choose to wear “skimpy” attire), the owners showed themselves open to incorporating criticism. They clarified that it is not the attire that is the problem, but rather the mandating in some workplaces that women must wear certain attire, and I applaud the male servers at Union Local 613 for bringing some much-needed attention to this issue.

This is an issue that has arisen a number of times recently in this industry, and led to a Human Rights Complaint against another restaurant – Bier Markt – for its sexist workplace uniform policy. While female servers were required to wear a short, tight, blue polyester cocktail dress and heels, male staff were required to wear jeans, a long-sleeved button up shirt, and red converse sneakers. The restaurant eventually backed down, though only after the complaint had been filed. Further, when a male bartender wore the approved cocktail dress as his uniform, he was let go.

This was recently addressed by the Ontario Human Rights Commission in a report on sexualized dress codes. The Commission asserts that restaurants and bars should never force female staff to wear skimpy clothing as part of a work uniform. This prompted Ontario Women’s Issues Minister, Tracy MacCharles, to say that female employees should feel empowered to speak up and voice complaints if they have concerns about their dress code.

While the report and the comments of Minister MacCharles are not wrong, they are ignoring the vulnerable situation in which female servers find themselves. Servers are often young, and viewed as replaceable. If you refuse to wear a mandated outfit, or raise a human rights issue, you are just as likely to get fired as to make a change.

Interestingly, the male servers at Union Local 613 had a taste of this vulnerability, saying that when serving in a dress, they felt “vulnerable and uncomfortable” as they worked. There was some butt-grabbing, and the commentary, which is often tossed at women servers, was inappropriate. As noted by one server, “those jokes that they were making were, after a while, still very uncomfortable to be faced with”. Even though he knew them and they were joking, the server eventually wanted to stop serving one particularly rowdy table. He noted: “OK, I could deal with this again, and I know it's joking and I was joking with them the first time, but at that point, I just didn't really want to deal with it…. It was annoying, and I just wanted to give them the drink and walk away, but I realized that wasn't going to be an option”.

I can only imagine that Union Local 613 got a boost from this, and rightfully so. While I always loved them for their unimaginably good cornbread, I am now even more committed to going there, as they also reflect my beliefs.

Employers in the restaurant industry can learn from this. They should take concerns of staff regarding sexist policies seriously, and act accordingly. Women are a huge part of the restaurant serving industry, and employers must be careful not only to foster respectful workplaces, but also to ensure their own policies are not sexist.

Human Rights Legislation requires employers to ensure a non-discriminatory workplace, and to take steps to make sure it is a harassment-free. There are legal consequences to not complying with this law. So employers: check your policies against the applicable laws to make sure you are in compliance.

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2018 Nelligan O’Brien Payne LLP.

Service: Employment Law