By Darren Smith, Weekend Contributor
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.
By Darren Smith
Source: CBC News
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