Canadian HR Reporter

CANADIAN HR REPORTER April 4, 2016 INSIGHT 23 Now is the time for stronger laws when it comes to sexualized dress codes They contribute to unwelcome, discriminatory environment, often in precarious jobs e Ontario Human Rights Commission (OHRC) has issued a warning to employ- ers that sexist dress codes requiring female staff to wear high heels, short skirts, tight clothing or low-cut tops as part of the job could be a human rights violation. e OHRC issued a policy paper on March 8 to coincide with In- ternational Women's Day, calling for an end to workplace dress codes that discriminate. Sexualized and gender-specific dress codes are all too common in restaurants and bars, and can be found in other services as well. Whether in formal policy or in- formal practice, they contribute to an unwelcome and discrimina- tory employment environment for women. Employers do have a right to have a policy on dress codes, but only if it does not violate the On- tario Human Rights Code. "Employers must make sure their dress codes don't reinforce sexist stereotypes," said Renu Mandhane, chief commissioner of the OHRC. " ey send the mes- sage that an employee's worth is tied to how they look. at's not right and it could violate the On- tario Human Rights Code." Unions have always fought for the elimination of sexual harass- ment and discrimination in the workplace, so we applaud the OHRC for their policy and for helping to raise awareness on this issue. But while the law says work- ers can make a complaint and the code protects them from reprisal or threats of reprisal, the reality is that if it is a non-union workplace, workers could very well see their hours cut back or their jobs termi- nated altogether. For example, after experienc- ing sexual harassment while working in a non-unionized retail store, I complained to my employer. When the employer had to lay off workers, I was the fi rst one to go (even though I had more experience and years of employment than others who were not laid off ). I was never re-called back to work. I understood my termina- tion by the employer as a reprisal for my complaint, and without any employment, I fi led a com- plaint under the code. Workers in precarious em- ployment — which by defi nition includes people in temporary and contract work, along with those with uncertain work schedules, irregular earnings, inconsistent hours of work or jobs without benefi ts — do not have the eco- nomic power to stand up to their employer to ask them to bring their dress code policy into line with the code. In these industries, manage- ment makes all the decisions on who works the best shifts, how many hours people work and — depending on how much the man- agement likes them — if they are even on the schedule. If manage- ment wants to punish someone, they don't need to fi re him, they simply keep him off the schedule until he has no other choice but to look for a new job. Often faced with this reality, non-union workers — and pre- carious workers in particular — can fi nd themselves having to choose between making a com- plaint or keeping their livelihoods. What would you choose? A complaint-based system, which requires workers to make a complaint about their working conditions, will not result in the kind of outcome every worker deserves. What would work is a system that does not depend on com- plaints but on enforcement. Employers have a duty under the code to remove barriers to women's full and equal participa- tion in employment, take steps to prevent sexual harassment and re- spond to it quickly when it occurs. As part of the Ontario govern- ment's 2015 Action Plan on Sexual Violence and Harassment, chang- es to the Occupational Health and Safety Act (OHSA) are being proposed which, if adopted, will strengthen existing obligations of employers to prevent and respond to sexual harassment. Sexist dress codes are not only a human rights issue in the work- place but a workplace safety issue as well. If the government wants to ensure precarious workers do not have their human rights or workplace safety rights violated with sexist dress codes, they could, under OHSA, ask employ- ers (as part of their obligation to keep workers safe and free from workplace violence and sexual harassment) to ensure dress codes are not contributing to the sexual harassment of staff . Although the minister respon- sible for women's issues, Tracey MacCharles, has indicated new laws are not the best way to ad- dress this issue — because she preferred to focus on businesses that were taking proactive steps to implement fair policies — en- forcement through law may be the only solution. UFCW Canada (United Food and Commercial Workers) rep- resents members in restaurants who have a grievance procedure, which is a vehicle to have their is- sues addressed in the workplace. rough this procedure, work- ers are represented by a UFCW representative who enforces the contract, as well all the relevant workplace legislation in the prov- ince, including the code and the OHSA. is is a system where workers do not have to fear reprisal and worry about making a choice be- tween their economic livelihood and their human rights. Employ- ers that do not review existing dress codes and remove discrimi- natory requirements may find workers calling the union, with the union using its resources and expertise to fi ght for, and protect, their rights. The Ontario Human Rights Commission is showing true lead- ership by taking this important step forward. Now, we just need the Ontario government to follow suit by fur- ther empowering workers to be a force for greater equality and fair- ness in our workplaces. Debora De Angelis is the national co-ordinator of strategic campaigns for the United Food and Commercial Workers (UFCW Canada) in Toronto. Participating in the accommodation process Question: If an employee refuses to partici- pate in the accommodation process but clearly can't do her full duties, what pro- cess should the employer follow before it gives up and dismisses the employee? Answer: An employer has a duty to accommodate the disability of an employee to the point of un- due hardship, unless it can show there is a bona fi de occupational requirement that would prevent it from doing so. While privacy leg- islation, as well as human rights laws, restrict the amount and type of medical information an em- ployer can require from the em- ployee, the employer is entitled to understand the limitations upon the employee's ability to carry out her work-related duties. In other words, the employer is entitled to fully understand the need for accommodation so it can assess the viability of providing ac- commodation, as well as the op- tions for doing so. The accommodation process is intended to be a two-way dia- logue between the employee and the employer (or a three-way dia- logue that would include a union if one is present). Employees are not entitled to make a request for accommodation and then refuse to participate in the process. Sometimes, an employer will suspect an employee's poor per- formance is caused by a disability. Rather than engaging in discipline or performance management, it is often appropriate to speak with the employee and, respectfully, in- quire as to whether there are any extenuating circumstances that are impacting his performance. If the employee refuses to ac- knowledge a disability or need for accommodation, after being been given reasonable opportunity to do so, then the employer may be unable to consider any possible need for accommodation and, if circumstances warrant it, can proceed with dismissal. e dismissal could be for just cause in appropriate circumstanc- es or can simply be on a without cause basis, in which case the em- ployee would be entitled to notice of dismissal or pay in lieu thereof. It would be crucial for the employ- er to document all of its eff orts to discuss any need for accommoda- tion with the employee, and the employee's refusal to participate in the discussion. Stuart Rudner is a founding partner of Rudner MacDonald, a Toronto- based employment law fi rm. He is the author of You're Fired: Just Cause for Dismissal in Canada, published by Carswell, a omson Reuters busi- ness. He can be reached at srudner@ rudnermacdonald.com. Stuart Rudner TOUgHeST HR QUeSTiON Non-union workers — and precarious workers in particular — have to choose between making a complaint or keeping their livelihoods. "While I generally agree with the principle that we shouldn't be cre- ating sick leaves for every ailment, I think your response is missing a key point. Specifically, that lumping period pain in with sick leave systemically impacts women by making it more likely they will max out their sick days (and need unpaid days or be referred into atten- dance management streams). While, yes, lots of people have various ailments (such as asthma, migraines and arthritis), only women have period pain, and I'm struggling to think of an equivalent sickness issue that impacts as many men that would level the "sick day" playing field. If companies had, for example, 30 days of sick leave a year, then this would not be an issue. I acknowledge that you are suggesting we should be debating the number of sick days available. However, the reality is most companies don't have that many days, and that's probably not changing. One day a month for a period leave is 12 days a year. Lots of companies don't have sick days that are more than 12 days a year. So women who have to use their sick days for period pain might run out. It's not appropriate to compare the effect of a sick day policy between a man who has asthma to a woman with period pain; the appropriate comparative is a man with asthma and a woman with asthma and period pain, since pretty much all women have period pain. I do agree with your point that a greater number of sick days in general would solve the problem. However, in the interim, ignor- ing the effect of period pain on sick days is systemically affecting women." — Patti, commenting on Todd Humber's blog "We don't need new sick leaves. Period." Join the conversation. Comment on any blog on www.hrreporter.com. READER COMMENTS e Ontario Human Rights Commission (OHRC) has issued a warning to employ- ers that sexist dress codes requiring female staff to wear high heels, short skirts, tight clothing or low-cut tops as part of the job could be a human rights violation. e OHRC issued a policy paper on March 8 to coincide with In- ternational Women's Day, calling for Debora de Angelis GUeST COMMeNTaRY

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