Restaurant dress codes open to sexual discrimination complaints

Dress codes at Canadian restaurants, bars or nightclubs that are not comparable for both men and women could set the stage for a successful human rights complaint.

Issue arises when clothing requirements are not comparable between men and women

Establishments that require female servers to wear short skirts and low-cut tops may be liable for sexual discrimination if male servers are not required to wear similarly revealing attire. (Associated Press)

When server Andrea Mottu was required to wear a bikini top for a Hawaiian-themed event at the Vancouver nightclub where she worked, her boss didn't expect her to show up in a turtleneck.

Andrea Mottu won a human rights complaint after the tribunal ruled the nightclub she worked at had vastly different dress standards for males and females. (Andrea Mottu)
"It wasn't that I had a problem with anyone wearing bikini tops," says Mottu, who now works in the legal field. 

"It was simply that I felt uncomfortable wearing one in a bar setting with intoxicated people where a pull of a string would be easy." 

​Mottu took her complaint to the B.C. Human Rights Tribunal and was awarded $6,000 in 2004.

The tribunal found that the nightclub had vastly different dress standards for males and females; males were not asked to wear gender-specific clothing or a piece of clothing that had sexual connotations.

Dress codes calling on serving staff to wear revealing attire have been a longstanding concern for some in the hospitality industry and drew more attention recently with the development of an Edmonton-based website, F.E.D.U.P. YEG (or Feminist Eatery Database — Undercover Project).

The project, created by four University of Alberta students, aims to highlight sexism and other discrimination issues in the food services industry by collecting survey responses from restaurant customers and employees.

Responses on the project's Twitter account included posts saying that some female servers were required to have their hair done a certain way, wear makeup, jewelry, short skirts, cleavage-revealing tops and heels.

Similar attire

While female servers in various restaurants across Canada can be seen in similar attire, in some cases where a server feels he or she is being discriminated against based on gender, a human rights claim could be filed, according to two employment lawyers practising with Gowling Lafleur Henderson LLP.

Where an outfit sexualizes an employee, whether it be male or female, there can be successful sexual discrimination claims, lawyers say. (Associated Press)
"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," said Geoffrey Howard, a partner at the firm's Vancouver office.

Bettina Burgess, who practises in Gowlings' Waterloo Region office in southern Ontario, said males and females can have different dress codes, but they must be of similar types for a business to avoid sex discrimination complaints.

For example, if a female were required to wear a bikini top, it may not be a human rights violation if male staff were also required to wear similar "scantily clad outfits."

Burgess said the issue arises when dress codes are not comparable across sexes.

"[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," she said.

Establishments that require female servers to wear short skirts and low-cut tops, for example, may also be liable for sexual discrimination if male servers are not required to wear similar revealing attire.

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.

Challenge of interpretation

Donna Dooher, interim president and CEO of Restaurants Canada, said the association doesn't have any overarching policies on dress codes and that the interpretation of dress standards are challenging for both employees and employers.

Everybody has a different approach and a different comfort level to what they would like to wear.- Donna Dooher

She believes that servers are aware of dress codes before being hired and said they should ask during job interviews what attire will be required.

"Everybody has a different approach and a different comfort level to what they would like to wear," she said.

Mottu said that having worked in the service industry, she doesn't have a problem with dress standards if they are communicated before employment and are venue-appropriate.

"While the dress code requirements were not specific in terms of length of skirt or neckline of top, let's just say that I wasn't exactly wearing snowsuits to work," Mottu said in an email.

While servers who are required to wear revealing clothing may have a case, a complaint against an employer for having specific hair, makeup or jewelry requirements would likely be unsuccessful. According to Burgess, it would be more difficult to prove sex discrimination.

For servers complaining about the requirement of wearing heels, both Howard and Burgess said obtaining a doctor's note showing medical issues, or even showing research about the impact heels have on the body, would likely persuade an employer to allow flat shoes.

Issues of slipping and falling while in heels would be an Occupational Health and Safety concern and a server would have to prove there's a safety risk.

Heels and safety

However, Earls, one of the restaurants mentioned on F.E.D.U.P.'s Twitter account, recommends wearing heels to reduce safety hazards, says the company's communication manager Cate Simpson.

Simpson said in an email that lower shoes are accepted if they protect against stepping on glass, but a 2.5-centimetre heel or low wedge is preferred because "ballet flats don't offer enough protection or support."

Earls was the only restaurant to respond for comment out of several restaurant chains contacted by CBC.

Howard said that given the prevalence of Canadian restaurant chains that encourage revealing attire, he is "astounded" by how few formal complaints there are.

He suspected complaints aren't filed because servers may fear their hours being cut or termination. Simply complying with the dress code seems like the "path of least resistance" in some circumstances, he said.

Yet Burgess said formal complaints may not be necessary to change the dress standards in the industry.

"These things could be handled more the way they are in Edmonton — in a sort of consumer-boycott or consumer-activism kind of approach," she said.

"If society in general wants to change it, it can eventually change."