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. Ari, Thanks for the nice details, you know how to talk food w/ an Italian, paisan.

  2. Nick…my dinner was excellent and began with minestrone soup, then a great salad of mixed greens, a piece of fried eggplant topped with tomato and cheese, then Veal Saltimbocca with Parmesan covered fresh green beans and carrot slices on the side. I skipped a pasta dish because I eat so much of it at home (daily). I finished with Espresso neat. No wine nor dessert needed.

    The particular place (Da Eduardo’s Foxtown Grill) we were at is one of those who makes Saltimbocca that I like…there seems to be several versions, some way to oily…this place’s is perfect. Nobody has to roll your bloated body out the door.

  3. Isaac, I sometimes feel a bit guilty pushing your buttons. It’s like shooting fish in a barrel. But, that’s part of my tradecraft.

  4. Nick

    Trudeau was one of the greatest of the World’s politicians and leaders. He had the balls to say that the Vietnam war was a crime. He rowed a boat to Cuba to show how stupid that mess was. He had the balls to stand his ground against the US in a time when the US was as shameful as it ever was. The US is a great country and one of its greatest accomplishments is rising out of the muck and seeking truth and justice. Unfortunately it wasn’t always that way.

    Trudeau saw Canada through a tumultuous time when Quebec could have split. He tied up a lot of loose ends and created a country that is more unified yet freer than it was. His right hand man Jean Cretien who held most major portfolios went on to be Prime Minister for ten years. Between Trudeau and Cretien Canada had the best 25 years of leadership ever. Before he entered politics he wrote law.

    If you want to bash a Canadian Prime Minister bash Diefenbaker. He was nothing more than a poodle for the US. He cancelled the Avro Arrow jet fighter bomber program and bought obsolete Bomarc Missles from the US military instead. The Arrow was equal or better of the most advanced fighter bombers of the time 1950’s to 1960’s. It was capable of Mach 2 and had a ceiling of 50,000 feet. The Iriquois engine was on order from the French for their Mirage program. When the a hole Diefenbaker cancelled it, one of the most advanced teams of ‘rocket scientists’ was disbanded and went to the ‘Skunk Works’, NASA and other programs. Canada manufactures some of the best small passenger jets in the world through Bombardier. If Avro had stayed intact the situation would be ten times better.

    I don’t mind Canada bashing if you target those in need of a good bashing. The strength of a people is the ability to accept a bashing where a bashing is due, like you Nick realizing how much the three stooges need to be bashed, and bashed, and bashed.

    Oh yeah, bash Harper if you want. He deserves a good one.

  5. Didn’t some guy sue Hooter’s because they wouldn;t hire him? Is that case still going?

  6. Ari, What did you order last night? How was it? Waiting tables and bartending were some of the best education I ever received. So was caddying @ a country club as a 13 year old.

  7. Hooters does have horrible food. Everything fried and the beer on tap is piss.

    There are plenty of Sports Bars that have better food and ambiance.

  8. @Pogo

    Good point about the commies. This stuff is also similar to some of the periodic cleansing of various heretics, who disagreed on some obscure point of theology.

    Squeeky Fromm
    Girl Reporter

  9. DBQ …I agree that retail service of almost any kind is very hard to do well, and I am very aware that I’d be horrible at it, which is why I have avoided it. I tip well because I appreciate those who serve in places with a cheery smile even when confronted by boorish jerks, male or female. When I had the responsibility for hiring, any resume that included a couple of years as a waitress or waiter always scored well for a candidate, mainly because I knew that there was likely one issue I’d not have to deal with…the inability to deal with others. I would then always ask questions relating to that retail service experience. More often than not, I would hire those who had that experience and spoke positively about it. I knew I could train the technical stuff, but civility isn’t one of the things I know how to teach.

  10. Not sure it means anything, but I ate with friends at a great little Italian restaurant last evening. Although in the “big show district” of the city none of the waitresses or waiters were half naked, all had slacks, neat tops and vests. The only flashy female, maybe late 30 early 40-ish, was the hostess at the door…she was wearing a beautiful lace gown that reached below her knees and covered her to her neck line. She had a beautiful face and great smile, and engaged you in conversation as she seated you. Food was great as usual and the hostess was a nice accessory…you really can be extremely attractive without undressing.

    Were I about 30 years younger and unattached I’d have asked her out for a first date for coffee and a visit to the local art museum. Then, again, I am rather fond of women generally, especially when they are pleasant and intelligent, as well as nice looking…which usually means a nice spontaneous smile. I’ve never been a locker-room kind of guy…give me the company of bright women and I am a happy camper.

  11. @ Karen

    I also was a waitress in a restaurant in college. I was a HORRIBLE waitress in the restaurant. I hated clearing the table especially when people were putting their cigarettes out in the food. GROSS cigarette butts in the eggs. Couldn’t keep up with refilling water, coffee and other things. I knew I was a terrible waitress and wasn’t surprised when I didn’t get tips. I soon quit. No point in inflicting myself on innocent people.

    I always tip and a good waitress will get a good tip. Being a waitress is a very hard job. Being a good waitress is a fantastic skill.

    On the other hand, I was also a cocktail waitress in a nice bar and did rather well. I enjoyed that job.

    Christmas tree lights. If they are on the tree, I don’t bother trying to untangle them or remove them from the tree. I just throw them away with the tree instead of going through the frustration of trying to untangle them and get stabbed by the pine needles Gah!!!!!!! INTO the trash with you! I’ll buy more next year.

  12. Oh, and I go to a jazz booze blues club with my half blind guy as his guide dog and he really hams it up and feels em up and exploits his half blindness. He can see a lot better than he puts on and he and the gals put on a show for me. I get to give a lick once in a while.

  13. There is a big difference between a bar without food served or not much, and a restaurant. In a drinking bar with women servers with nice boobs and short skirts there is no interference with some food angle. They are just pouring drinks and/or bringing them to you. You don’t want to see the mashed potatoes get spiked by the loose boob. What a man wants is good music, loose women and fine booze. Not in that order. But eat before you go and just go to a jazz, blues, booze and bimbo bar.

  14. I love a good rack. But, it won’t get me in the door. The first 2 questions regarding a restaurant are this, and they are not negotiable.

    How’s the food?

    How’s the service?

    After that, it is personal. Price, atmosphere, rack, etc. The reason corporate restaurants are taking over the US food culture is because too many people put price @ number 1.

  15. Sounds like a Seinfeld episode. A good rack gets them in the door, in Canada, the good ole USofA, anywhere. If the food’s good they come back.

    What! No Obama bashing. Canada bashing. Is that all you got?

  16. If this was a CPA office, where female CPAs were required to wear bikinis to a work event while the men were dressed in suits, I would consider it discrimination.

    However, this was a nightclub. Are they saying that everyone who works in a strip club, including the bouncers, will now have to wear their underwear? Will the bouncers be required to do a lap dance before they throw a guy out, to avoid discrimination? In a gay bar, I would expect the men to be dressed more provocatively.

    Nick – I won’t tip less than 15%, either. That’s what I’ll give if the service was absolutely awful. Otherwise, it’s 25%. I worked at a restaurant when I was going to college. And I agree that how a person treats wait staff is a test of character. So is their attitude towards animals, especially a shy dog, as well as tangled Christmas tree lights or lost luggage.

  17. Did she know that this was the “costume” or dress code when she took the job?

    If so. Too bad for her. You took the job. Suck it up and wear the costume or quit. Stop complaining about your own bad decisions.

    Did they arbitrarily change the “costume” or dress code after she was employed?

    Now she might have some cause of action. It was a bait and switch….so to speak.

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