Canadian Employment Law Today

6 | May 10, 2017 Canadian HR Reporter, a Thomson Reuters business 2017 selves to liability. e impetus for this report arose be- cause some restaurants across Ontario have dress codes that require female servers to wear short skirts, tight dresses, high heels or low-cut tops; the same does not apply to male servers. Due to the systemic nature of the problem and the impact based on protected grounds under the Ontario Hu- man Rights Code, such as age, sex, creed, gender identity and gender expression, the OHRC decided to have a "call to action" on gender-based dress codes. Hopefully, this report will bring about change which is long overdue. Impact of discriminatory dress codes on employees Most workers in restaurants and bars across Ontario are women, many of whom are young and precariously employed. As a re- sult, they are prone to being more vulner- able and are less likely to be aware of or be able to assert their rights. Sexual dress codes reinforce stereotypi- cal and sexist notions about females, and can lead to discrimination based on various code-protected grounds. In fact, sexual ha- rassment is quite common in some restau- rants and bars, and may be perpetuated by the normalization of sexual dress codes. is is the reality of the restaurant industry and, consequently, many workers are afraid to object to dress codes or complain about sexual harassment and other discrimination. Not surprisingly, the report revealed that some workers fear reprisal for raising such concerns. Workers who object to wearing gender-specific outfits may be at greater risk of losing their job or not being hired. Even if workers object or complain, restaurants are often unresponsive and dismissive, effectively condoning a discriminatory workplace. Accordingly, although gender-based dress codes may seem like a narrow is- sue to focus on, it is a critical first step to eradicating sexual harassment and other discrimination in the workplace. Limits on employer's management rights e report maintains that organizations can have uniform policies for staff that are in line with their corporate brand, ensure a professional image, address health and safety-related concerns, and meet their organizational goals. ese are recog- nized as "legitimate business interests." However, the policies and requirements must comply with the code. For instance, if an employer believes that having a sexual dress code will increase the organization's competitiveness and profits, it cannot simply turn a blind eye to its discrimina- tory effects and violate employees' code- protected rights. In that regard, employers are obligated to take reasonable steps to prevent and address harassment and discrimination in the workplace, such as by not requiring sexual or gender-stereotypical clothing. Employers that fail to prevent sexual ha- rassment and discrimination, appropriately respond to and handle staff complaints, or accommodate employees up to the point of undue hardship, are viewed as contribut- ing to a discriminatory work environment. For example, in McKenna v. Local Heroes Stittsville, the respondent sports bar had cut the server's shifts after she raised concerns about wearing a new form-fitting uniform due to her visible pregnancy. Previously, she had been allowed to wear loose t-shirts. e Human Rights Tribunal of Ontario (HRTO) found that management, in their effort to re- brand by emphasizing the sexual attractive- ness of their staff (almost all young women), saw the applicant's visible pregnancy as in- consistent with their re-branding efforts. e HRTO found this to be discriminatory, and ordered the respondents to pay her $17,000 for injuring her dignity and almost $3,000 in lost wages. In September 2016, Bill 132, which amends Ontario's Occupational Health and Safety Act (OHSA), came into force in On- tario. e bill includes sexual harassment in the definition of workplace harassment and creates new obligations to address sexual harassment in the workplace. is legisla- tion outlines employers' obligations to have clear policies, outlines how and to whom an individual is to report an incident of sexual harassment, and delineates how allegations of sexual harassment will be investigated and reported. In that regard, the Ontario Minis- try of Labour has issued a code of practice to help employers comply with the OHSA's harassment provisions. e report, in line with Bill 132, aims to put an end to workplace discrimination. erefore, employers must ensure their workplaces are free of discrimination and harassment; otherwise, they expose them- selves to liability for violating employees' hu- man rights, bad publicity, the risk that they will lose employees without the ability to re- place them with quality individuals, as well as decreased employee productivity, low morale, and increased absenteeism. Employers can no longer ignore the el- ephant in the room, nor can they afford to. Best practices: Policy and process Employers must recognize that different employees may have different code-related needs and are affected in different ways by uniform requirements. Accordingly, it is crucial to have clear, comprehensive and inclusive policies; processes to address complaints about dress codes, sexual ha- rassment, and other discrimination; and ac- commodation processes. e OHRC has developed tools that em- ployers can use to comply with its policy po- sition and remove discriminatory barriers, such as those created by sexual dress codes. For instance, the OHRC has prepared a checklist for employers to ensure their dress codes comply with the code. Employers would be well-advised to adopt the following practice tips: • Policies and processes should be written and put into practice. • Retain records of harassment and dis- crimination complaints, accommodation requests, and all assessments. • Accommodate up to the point of undue hardship. • Consider options and be flexible. • Train employees. • Investigate workplace harassment and dis- crimination complaints. • Communicate findings of harassment and discrimination complaints, including a general summary and intended future pre- ventative steps. Where necessary, provide additional details (such as changing shifts). • Educate yourself and your employees. By releasing this report, the OHRC ex- pressed the growing intolerance for sex- ual harassment and other discrimination; contributed to the ongoing (and much needed) dialogue about the barriers wom- en face in the workplace; acknowledged the vulnerability of many employees who do not object to sexual dress codes or complain about harassment due to fear of reprisal; recognized that proactive steps must be taken by employers to remove discriminatory barriers; and provided practice tools for employers to help create workplaces that are barrier-free and to en- sure compliance with the Code. is message is a long time coming but is strong — discriminatory dress codes and sexual harassment will no longer be tolerated. Many restaurants have already amended or drafted policies and processes to comply. e challenge will be the obvi- ous next step: putting them into practice. For more information see: • McKenna v. Local Heroes Stittsville, 2013 HRTO 1117 (Ont. Human Rights Trib.). • Not on the Menu: Inquiry report on sexual and gender-based dress codes in Ontario's restaurants, http://www.ohrc.on.ca/en. Nadia Zaman is an associate with Rudner MacDonald LLP, an employment and labour law firm in Toronto. She can be reached at nzaman@rudnermacdonald.com. « from DRESSING DOWN on page 1 Employers must comply with new obligations

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