Canadian HR Reporter

CANADIAN HR REPORTER May 15, 2017 EMPLOYMENT LAW 5 RECRUITING FINANCIAL PROFESSIONALS? O er positions to over 200,000 Members Highly targeted advertising Immediate matching resume database access FOR MORE INFORMATION, cpacanada.ca/CPASource TELEPHONE•416 204 3284•EMAIL•TGardiner@cpacanada.ca 14-126a_EN_CPAsource_fullpagead_9.625x7.indd 1 1/5/2016 3:24:31 PM Dressing down discriminatory dress codes Sexualized and gender-based dress codes off the menu at Ontario restaurants is year, on International Women's Day, the Ontario Human Rights Commission (OHRC) released a new report, Not on the Menu: Inquiry Report on Sexual and Gender-based Dress Codes in On- tario's Restaurants. It outlines fi nd- ings from an inquiry into dress codes at various Ontario restaurants and commitments made by a number of restaurant chains to put an end to discriminatory dress codes for res- taurant staff — particularly female and transgender workers — and cre- ate more inclusive workplaces. e result: Sexual harassment and gender-based dress codes are off the menu and will no longer be tolerated. us, employers with discriminatory dress codes ex- pose themselves to liability. The impetus for this report arose because some restaurants have dress codes that require fe- male 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 Human Rights Code, the OHRC decided to have a "call to action" on gender-based dress codes. Hopefully, this report will bring about change that is long overdue. Impact of dress codes Most workers in restaurants and bars are women, many of whom are young and precariously em- ployed. As a result, they are prone to being more vulnerable and are less likely to be aware of or be able to assert their rights. Sexual dress codes reinforce ste- reotypical and sexist notions about females, and can lead to discrimi- nation based on various code-pro- tected grounds. In fact, sexual ha- rassment is quite common at some restaurants and bars, and may be perpetuated by the normalization of sexual dress codes. Consequently, many workers are afraid to object to dress codes or complain about sexual harass- ment and other discrimination. Not surprisingly, the report re- vealed some workers fear reprisal for raising such concerns, such as losing their job or not being hired. Even if workers object or complain, restaurants are often unresponsive and dismissive, ef- fectively condoning a discrimina- tory workplace. Accordingly, focusing on gen- der-based dress codes is a critical fi rst step to eradicating sexual ha- rassment and other discrimina- tion in the workplace. Management rights e report maintains that organi- zations can have uniform policies for staff that are in line with their corporate brand, ensure a profes- sional image, address health and safety-related concerns, and meet their organizational goals. ese are recognized as "legitimate business interests." However, the policies and requirements must comply with the code. In that regard, employers are obligated to take reasonable steps to prevent and address harass- ment and discrimination in the workplace, such as not requiring sexual or gender-stereotypical clothing. Employers that fail to prevent sexual harassment and discrimi- nation, appropriately respond to and handle staff complaints, or accommodate employees up to the point of undue hardship, are viewed as contributing to a dis- criminatory work environment. For example, in the 2013 McK- enna v Local Heroes Stittsville, the sports bar cut the server's shifts after she raised concerns about wearing a new form-fi tting uni- form due to her visible pregnancy. Previously, she had been allowed to wear loose T-shirts. The Human Rights Tribunal of Ontario (HRTO) found that management, in their eff ort to re- brand by emphasizing the sexual attractiveness of their staff (almost all young women), saw the server's visible pregnancy as inconsistent with their rebranding eff orts. e HRTO found this to be discrimi- natory, and ordered the respon- dents to pay the woman $17,000 for injuring her dignity and almost $3,000 in lost wages. Back in September 2016, Bill 132, which amends Ontario's Occupational Health and Safety Act (OHSA), came into force in Ontario. It includes sexual harassment in the defi nition of workplace harassment and cre- ates new obligations regarding policies to address sexual harass- ment in the workplace. is legis- lation outlines employers' obliga- tions to have clear policies, how and to whom an individual is to report an incident of sexual ha- rassment, and how allegations of sexual harassment will be investi- gated and reported. In that regard, the Ontario Ministry of Labour has issued a Code of Practice to help employers comply with the OHSA's harassment provisions. Therefore, employers must ensure workplaces are free of dis- crimination and harassment; oth- erwise, they expose themselves to liability for violating employ- ees' human rights, bad publicity, the risk they will lose employees without the ability to replace them with quality individuals, as well as decreased employee productiv- ity, low morale, and increased absenteeism. Best practices Employers must recognize that diff erent employees may have dif- ferent code-related needs and are aff ected in diff erent ways by uni- form requirements. Accordingly, it is crucial to have clear, com- prehensive and inclusive policies; processes to address complaints about dress codes, sexual harass- ment, and other discrimination; and accommodation processes. The OHRC has developed tools that employers can use to comply with its policy posi- tion and remove discriminatory is year, on International Women's Day, the Ontario Human Rights Commission Not on the Menu: Inquiry Report on Sexual and Gender-based Dress Codes in On- It outlines fi nd- ings from an inquiry into dress codes at various Ontario restaurants and Nadia Zaman LeGAL VieW RETAIN > pg. 15

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