Women and dress code discrimination: 3 cases that made it to human rights tribunals

The Ontario Human Rights Commission says it commends the bravery of women who have spoken out about dress codes that require them to wear sexy outfits while working at restaurants and bars.

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The Ontario Human Rights Commission says it commends the bravery of women who have spoken out about dress codes that require them to wear sexy outfits while working at restaurants and bars.

Several women were featured in a CBC Marketplace investigation into the dress codes that aired Friday evening. Last fall, two former servers at the Bier Markt in Toronto filed human rights complaints

"The OHRC has been working on this issue for many years," the commission said in an email on Friday. "The issues raised by servers in CBC Marketplace's inquiry provided us an opportunity to restate our long-standing position on sexualized dress codes."

Human rights experts say bar and restaurant dress codes requiring female employees to wear revealing attire could be a potential discrimination issue, but not many people file formal human rights complaints about it. (Associated Press)

The commission said it will release the new statement on Tuesday for International Women's Day. 

Formal human rights complaints about dress code discrimination in Canada are "relatively infrequent," said Robyn Durling, communications director of the B.C. Human Rights Clinic.

But those numbers don't reflect the scope of the problem, he said.

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"Individuals don't report it very often," Durling said. "I would say that the issue of discrimination with respect to clothing is not something that is an infrequent occurrence. I suspect it happens very often. All you have to do is walk into a restaurant and take a look around."

Many of the people who work in restaurants and bars are young women — often students — and are a "fairly precarious" workforce, said Renu Mandhane, chief commissioner of the Ontario Human Rights Commission.

"In many ways we wouldn't expect to see that many complaints before the tribunal, because many women would just choose to leave their job rather than … launch a human rights complaint against their employer," Mandhane said.

"A complaint to the tribunal is a very time-consuming process," she said. "We always hope that employers, once they know what the law requires, will make appropriate changes to their policies so that their employees don't actually have to complain to the tribunal."

Here are three cases of workers who did make formal human rights complaints about dress-code related discrimination.

1. McKenna vs. Local Heroes, Stittsville, Ont.

In June 2013, an adjudicator for the Human Rights Tribunal of Ontario ruled that Local Heroes, a bar in Stittsville, Ont., discriminated against Ashley McKenna, a part-time waitress there, after she voiced her concerns about wearing form-fitting shirts introduced as part of a new dress code in 2011. 

McKenna was pregnant and told the manager that the new uniform would highlight that. The manager agreed McKenna would not have to wear the shirt. But after two more shifts, the bar stopped giving McKenna work, according to the tribunal's case document.        

The adjudicator ordered the bar to pay McKenna $2,848 in lost income and $17,000 "for injury to dignity, feelings and self-respect." He also ordered managerial staff to complete online training called "Human Rights 101" provided by the Ontario Human Rights Commission. 

2. Mottu vs. MacLeod and others, B.C.

The British Columbia Human Rights Tribunal ruled in favour of Andrea Mottu, who complained the nightclub she worked for discriminated against her when she refused to wear a bikini top.

According to the tribunal document, Mottu's job was to sell drinks from a "beer barrel" near the front door of the club, where the normal uniform was a black top and skirt or pants. 

In April 2001, the document said, employees were asked to come up with a consistent costume to wear for a beach-themed fundraiser. She wasn't present when a group of servers decided they would wear bikini tops.

The manager of the club, Cass MacLeod called to tell her about the decision, the document said, and she was told she could choose to wear the costume, including the bikini top, or choose not to work the shift and not be paid. 

After consulting her union, Mottu showed up for her shift wearing a bikini top with a tank top and a sweater on top. "Her purpose was to make a point with Mr. MacLeod that the bikini top was not appropriate," the tribunal document said. 

In future shifts, Mottu was no longer assigned to the beer barrel, but was placed in a dark corner at the back of the nightclub with a bucket containing "an unpopular, discontinued drink." She took her story to the media, and then faced tension at work. In May 2001, following her doctor's recommendation, she left her job.   

In 2004, the tribunal adjudicator found the "the nightclub was trying to force Ms. Mottu to quit" and awarded her about $6,000 in compensation for lost wages and tips, as well as injury to dignity, feelings and self-respect. 

3. Female bartender vs. a bar in B.C.

This complaint to the B.C. Human Rights Tribunal in 2010 was resolved before it went to a formal hearing, according to Durling of the B.C. Human Rights Clinic. Durling said that in general the tribunal tries mediation before escalating to a hearing.

In her complaint, the woman alleged discrimination regarding gender-based physical appearance. She said the nightclub had a strict dress code for female employees, including high-heeled shoes, miniskirts and shirts showing cleavage, as well as a stated preference for women to wear their hair down rather than up.

She alleged that one time when she wore her hair up, her manager asked her to take it down.   

With files from Lindsay Sample, CBC Marketplace