Some Canadian Restaurants’ Skimpy Dress Codes Could Be Discriminatory If Not Equally Applied To Men

By Darren Smith, Weekend Contributor

Andrea Mottu
Andrea Mottu

A legal analysis in Canada of their anti-discrimination laws indicates that discrimination might occur if women are to wear revealing clothing and men are not similarly attired.

The British Columbia Human Rights Tribunal held that a dress code requiring a waitress to wear a bikini top during a nightclub’s Hawai’ian themed event was discriminatory because men were not required to wear a male specific analog of her clothing.

The tribunal awarded Andrea Mottu C$6,000 in 2004.

In their ruling the nightclub then had greatly differing rules concerning male and female employees. Men were not required to wear revealing clothing, or gender specific clothing which had potentially sexual connotations. Women were to wear such revealing attire.

While these types of employee uniforms are common in some venues throughout the United States and Canada, several legal professionals are debating if this generally could be cause for action against employers.

Geoffrey Howard, a partner with Gowling, Lafleur, Henderson, LLP stated in an interview with CBC News:

“Where an outfit sexualizes the employee, whether it be male or female, there can be … successful claims that [are ruled] a form of sexual discrimination.”

Bettina Burgess, also of Gowling, said that either gender may have its own specific dress code but they must be of a similar fashion to avoid discrimination torts.

“[Dress codes] should be equal, they should be somewhat similar, but in accordance with what you would traditionally think a dress code would be for a male.”

In that respect if a woman is required to wear a bikini, men must also wear attires such beach clothing. As odd as this might seem, it does follow along an extension of what has become of anti-discrimination law statutory interpretation.

However, according to Howard, these cases are more on the “borderline,” and may be harder to win than a situation involving a piece of clothing with sexual connotations, as in Mottu’s case.

In most respects the decision is a matter of interpretation and not clearly defined.

Interim CEO of Canada Restaurants, Donna Dooher, indicated her association members and their employees have difficulty in determining what would constitute a permitted dress code.

She believes that prospective employees are made aware of the dress code before they are offered employment and that if they are concerned they should voice this during their interview.

Her argument likely will have weight in any future tort prosecuted against an employer. A plaintiff employee would have significant difficulty convincing a jury she was unlawfully required to wear low cut bikinis at Hooter’s Restaurant when it is common knowledge and obvious that this will be the dress attire among the servers. But, if a restaurant changes its attire from a more conventional uniform to a uniform style akin to that of a Hooter’s, the weight might shift to the employee.

A possibility if the matter comes to litigation in the United States some restaurants could potentially skirt the dress code problem by employing the servers as actors or entertainers portraying characters of a particular theme or story and that their performance is one of adhering to that role.

While such regulations might enjoy support among some, it could otherwise have a chilling effect on bikini bars and other businesses. It would be rather unfortunate to whittle down to the safest, most bland, most boring and old fashioned morals of the past. But there will always be those who will find loopholes and flaunt the law.

Too much ankle?


By Darren Smith

Source: CBC News

The views expressed in this posting are the author’s alone and not those of the blog, the host, or other weekend bloggers. As an open forum, weekend bloggers post independently without pre-approval or review. Content and any displays or art are solely their decision and responsibility.

59 thoughts on “Some Canadian Restaurants’ Skimpy Dress Codes Could Be Discriminatory If Not Equally Applied To Men”

  1. Issac … I realize you did NOT mean that the Cuban government and the SRV are literally our equals, good or bad. I am only trying to pry out of you the justification for the moral equivalence argument…and how things would be better if both Cuba and SRV had been left uncontested.

    I used the ethnic pejoratives only to point out our western man callousness toward Hispanics and Asians back in the day, and even now to some degree. If we’d ignored them forever how would they be better off is what I am asking.

    I acknowledge my bias, but don’t understand moral equivalence as an argument. Correct me if I take you wrong on this subject. I’m wrong a lot and I can take it.

  2. Issac said ..

    … when you look at the human desire for happiness and freedom to choose combined, both Vietnam and Cuba could have resulted in greater examples of that …

    Do you have any examples of the joy, happiness, and economic improvement of ordinary non-political citizens in Cuba or the SRV these days…now that we’re “gone” so to speak? We’re not perfect, but still the better choice. Took us a while to figure out that the “spics” in Cuba and the “dinks” in Indo-China mattered at all.

    The people of the SRV are reaching out to the USA today, as well as other democracies, and in that respect you are probably right about their historic animosity with China’s demand for total (proxy colonialism?) hegemony. The SRV’s invasion of Cambodia was in part a fight against Chinese influence too.

    The “Vietnam” as defined by a bunch of white guys in Geneva mid 50’s included other contested areas, such as the previously termed “Cochin China” (the southern 1/3 of the country as defined by Geneva) where a long running dispute for dominance, since at least 1066, existed between the Tonkinese and the Khmers of Cambodia. The wise white guys made a single “nation” out of three distinct cultural and linguistically different groups….while chopping off other groups in the same geographic area. Ask the Hmong and the Meo, and the Anamese, what they think today, and thought back then.

    This was their way of washing their hands of the place once consolidated even more by the French. Yep, the French made a botch of the place and should never have been allowed to re-colonize any part of Indo-China. However, back then we white folk didn’t have much use for the “dinks” and all that. I’m pretty sure the ordinary Cambodians weren’t very pleased with Pol Pot and his “democratic” methods….no more than the Tonkinese farmers were. Yet, you seem to think them our equals? Of course the Koreans and Japanese were very unhappy with MacArthur, the “last Shogun” some say….must be why there’s so many memorials to him … in places like Inchon, where I lived for a bit.

  3. Issac … please hold forth on this administration’s successes with “negotiation?” The latest rendition with Iran (after the botches of Egypt, Libya, Syria, Yemen, et al) is similar to Kissinger’s “peace” with the SRV…allowing them to keep their standing Armies in the south. What did he expect would be the result? If he knew, and I believe he did, then why not just “negotiate” a plan that was clear? Why the sham of a treaty?

  4. Aridog

    The bottom line, regardless of how the war could have been won, all in or not, is that the reasons for America’s intrusion in that area of the world was geo-political and economic. Colonialism by controlling puppets is no different than colonialism by installing governors and military governments. It is impossible to prove but when you look at the human desire for happiness and freedom to choose combined, both Vietnam and Cuba could have resulted in greater examples of that had the US not have been on an us or them, right or wrong, black or white, left or right mindset. When the US declared that it knew what was best for Cuba and Vietnam, the US ceased trying to understand what those people wanted and had a right to. History is full of greatness on both sides of the line, the good and the bad. The reason we should embrace our faults is so that we don’t perform like that again. It is a little early to see the results but two presidencies back to back, one taking the old road of force and the other attempting to bring all parties to the table will certainly provide some interesting reading in a generation or two. There are a lot of options between invading a country and attempting to negotiate a solution.

  5. Issac … not too sure about hose “heroes” you cited. I voted twice for the “peace candidates, in 1964 and 1968…whoops. Then I enlisted…figured what the heck.

    I don’t regret a minute of my time either. We did many things never credited to us…everything wasn’t bombing villages…when we embedded with civilian nationals. I know a few today, now in the USA, that I keep in touch with, who might have a different view than yours…no, they definitely do have a different viewpoint….but are unified on dislike of Kissinger. None think we were colonialists. Let me quote one (now a US citizen) from his email yesterday:

    I don’t think we will make any different no matter what technique or strategy as long as we still have too many “looser” politicians trying to run the wars or world conflicts without any knowledge of using military power as a leverage or capable of doing the very basic common senses. The lesson learned is that whenever we go to war we should go all the way with all power we have instead of doing the half way of kid games like the Vietnam war. It’s very sad to say that. I’ve seen enough of those so called “great politicians, world class advisers and world class leaders” in my life.

    I’ll accept your estimate of dead in Vietnam, if you are counting north and south, with the caveat that they are the statistics published by the current Socialist Republic of Vietnam in mid 1990’s. It’d be good to include the 100,000+ north Vietnamese farmers executed in the late 1950’s, using the Soviet model for the Ukrainian Kulaks. The SRV doesn’t count them.

    Thomas … minor correction, the Vietnam issue was handed over to Eisenhower, not JFK. Among Eisenhower’s first “Special Forces” actions were the 1959 Operation Hot Foot, later renamed Project White Star in Laos. JFK inherited a going concern, so to speak…and augmented the Special Forces in the process.

    As I said above, I voted for two peace candidates who then went all in themselves, so I enlisted…figured why not? I’d already lost friends in that mess, might as well join them.

  6. Thomas

    The French were amongst the world’s greatest criminals. A French warship shelled a Vietnamese city slaughtering 10,000. The French did to that area what the Americans did to the West. It is a human condition or shame, if you will. It seems that when a country is rising they justify no shortage of crimes as being in the best interests of themselves as well as their burden. Or it can be justified as part of the ‘Great Game’ or if we don’t others certainly will. In context it may be seen as the lesser of the evils, that is to say Western colonialism is better than Eastern colonialism. In the end it is rape, pillage, rule for the best interests of the two car garage or the vacation on the Riviera.

    Just because the colonial power loses dear sons and daughters in their attempts to take control, 50,000 or 30,000, it is still a crime. The French lost 50,000 in Algeria but killed almost a million Algerians. The US lost 50,000 in Vietnam but killed three million Vietnamese, more than half non combatant civilians.

    The French promised Ho Ci Minh free elections on several occasions and especially after the Japanese were beaten. If they had honored their promise Vietnam would be a substantially more advanced society now. This BS about dominoes is the real crime. For centuries the traditional enemy of the Vietnamese were the Chinese. The first war they fought after the Americans left was a border dispute against the Chinese.

    The French don’t get a pass. Another thing to ponder is that it is not the French or the Americans it is the governments of these countries supported by a few sometimes many vacuous citizens that followed in ignorance waving flags and quoting men that had been dead for two hundred years. There is the shame and the crime, not exclusive to any one country.

  7. Issac, point of information.

    If the “Vietnam war was a crime,” what was that very same activity under the French who gladly turned it over to Kennedy after Dien Bien Phu?

    You position would also make the French criminals.

    Est-ce vrai?

    Merci beaucoup.

  8. You exceed the American thesis of freedom with your “shameful racism,” morality dictatorship. What is the next dictate by collectivists? After compulsory acceptance of homosexuality and your final solution to “shameful racism,” is the corollary of your judgmental “moralistic” dictatorship approval of government marriages, bestiality or radical “vegetarianism?”

    Understanding the “civil” or public rights of every person, discrimination is the first step of freedom and is the freedom of thought, speech, press, assembly, etc.

    While theft, damage, harassment, assault, battery, rape, murder, etc., are crimes among all people, in a free nation, government cannot dictate the evolution of beauty, desire, affection, compassion or morality, including the first step of freedom, discrimination. Affirmative action, for example, is an egregious violation of freedom and an artificial dictatorial construct of bias.

    People have to cope with and adapt to life. People have to live with themselves and their own characteristics. People have to live with the consequences of freedom.

    In the American thesis, the freedom of the individual is “precious.”

    Marx implemented the dictatorship of the collective.

    That you dictate through manipulation of the vote in a restricted-vote republic, which is precisely what Ben Franklin admonished against when he said, “…a republic, if you can keep it,” will ultimately be destructive to that republic. To wit:

    “A democracy cannot exist as a permanent form of government. It can only exist until the people discover they can vote themselves largess out of the public treasury. From that moment on, the majority always votes for the candidate promising the most benefits from the public treasury, with the result that democracy always collapses over a loose fiscal policy–to be followed by a dictatorship.”
    ― Alexander Fraser Tytler

  9. So what is going on in British Columbia? Are they intent on closing down titty bars? Pirate territory. Fly over and flush.

  10. Aridog

    As Joni Mitchel wrote about youth, in one of her songs, “So young, so strong, so smart.”

    The sunrise of perception found in youth is precious. At my time, I still perceive but it is just so oft repeated stuff. There is a difference in topics today, vis a vis those that concerned us, Vietnam, shameful racism, nuclear annihilation, Quebec separating from Canada, testing nuclear bombs in volcanoes in Alaska, etc., landing on the moon, France refusing Britain entry to the common market, Nikita pounding his shoe on the desk at the UN, the oft repeated command, “Take this plane to Cuba.”, etc. We had our heroes too: Mitchell, Agnew, and of course the leader, Tricky Dickey.

  11. PS: for those who might question my college days, and where, I left Wisconsin when I ran out of money and had to go to work and school locally. Stuff happens.

  12. Issac said …

    When I was young, we all were very well read, informed on topics, and had enough interest to discuss the varying points of view until closing time.

    Periodically around the table we would all pitch in and laugh at ourselves. We weren’t scary.

    You just described my work all day, go to school at night college days…classes let out at 9:50 PM or so and we all gathered to amuse ourselves until 2:00 AM. It was a very eclectic group and we took an interest in everything…even when we were full of crap. Being “immortal” will do that to ya’ from time to time.

  13. Paul

    It was not a question of sense but a question of interest. If you read the newspapers and follow some our elected officials-I won’t mention names so don’t you-it would become apparent that there is just as much sense made at closing time in a bar than in Congress or the Senate. The big difference is that these guys keep a straight face. Periodically around the table we would all pitch in and laugh at ourselves. We weren’t scary. Today, some congress men and women and some Senators are scary. Hopefully the good ole check and balance system will work.

    1. issac – I would have more hope in the republic surviving if the checks-and-balances went back to working.

  14. Isaac, While I am hopeful for our future, there is a level of narcissism in millenials that is very disturbing. I see good in kids, but I have been involved w/ kids coaching and teaching my entire adult life. My first coaching job was inner city kids in 1975. The last decade or so has shown to be a different breed. Not Clockwork Orange yet, but trending that direction.

  15. Nick

    That’s why I’m here, to vent and rant and rage. Since I don’t drink in bars anymore, alright I’m not allowed in most bars anymore, the conversation is pablum.

    It is interesting. When I was young, we all were very well read, informed on topics, and had enough interest to discuss the varying points of view until closing time. I don’t see that any more. I wonder if it’s the times or just that I don’t get to sit around with young people much. Or it could be the difference between countries. There is a certain freedom of speech in a country like Canada or France that is not under the microscope like that of the US.

    1. issac – if you have ever spent a sober night in a bar listening to those ‘intellectual’ conversations solving the world’s problems you would realize how silly they really are. After the 4th drink everyone stops making sense.

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