Presentation to the Ontario Paralegal Association, April 29, 2017

1. Not On the Menu:
Sexualized Dress Codes in
Ontario
Ontario Paralegal Association
Omar Ha-Redeye
April 29, 2017

2. Our Topic
Sex may sell in the advertising and marketing
industry, but using your employees’ sexuality to sell
your services in Ontario may contravene human
rights.
Learn about the Ontario Human Rights Commission’s
new focus on sexualized and gender-based dress
codes, why this is a growing and important issue in
society, and how this can be used as grounds for an
application before the Ontario Human Rights
Tribunal.

4. Agenda
• General Overview of the Human Rights Code (5 minutes)
• Gender Under the Human Rights Code, and OHRC’s Policy on preventing
sexual and gender-based harassment (10 minutes)
• Media Focus on Sexualized Uniforms (25 minutes)
• OHRC’s Inquiry Report on Sexualized and Gender-Based Dress Codes (30
minutes)
• Appendix A & B to the Policy (20 minutes)
• Q/A and Discussion (15 minutes)
• Break (20 minutes)
• Case Law Overview (30 minutes)
• Designing Compliant Policies (30 minutes)
• Future Issues of Discrimination (20 minutes)
• Q/A and Discussion (15 minutes)

5. What is the Human Rights Code
• A quasi-constitutional document, dating back to
1962
• Precedes the Charter and the enumerated grounds
under s. 15
• Can more easily be amended than the Constitution
• One of the main instruments in society for
protecting against discrimination
• Complaints are adjudicated at the Ontario Human Rights
Tribunal (OHRT)

6. Support for Complainants
• Human Rights Legal Support Centre provides free
support to people who file applications with the
tribunal
• May include advice, support and legal representation
• Most complainants still unrepresented, and could
benefit from legal assistance by paralegals
• Ontario Human Rights Commission (OHRC)
provides policies and public education to identify
root causes of discrimination
• Goal is to bring about broad, systemic change
• Often intervenes on issues of public interest, such as
sexualized dress codes

7. What Does the Human Rights
Code Protect?
• The Code prohibits discrimination on protected grounds
in protected social areas
• Our focus is on employment, specifically in restaurants, who
employ 440,000 people, or 6.4% of the workforce in Ontario
• > 1/5 of Canadians between ages 15-24 work in restaurants
• S. 5. (1) Every person has a right to equal treatment
with respect to employment without discrimination
because of race, ancestry, place of origin, colour, ethnic
origin, citizenship, creed, sex, sexual orientation,
gender identity, gender expression, age, record of
offences, marital status, family status or disability

8. What is Gender?
• Gender identity: an internal and individual experience
of gender; a sense of being a woman, a man, both,
neither, or anywhere along the gender spectrum
• This may or may not be the same as their sex as assigned at
birth
• This is fundamentally different than sexual orientation
• Gender expression: how a person publicly presents
their gender; can include behaviour and outward
appearance such as dress, hair, make-up, body
language and voice
• Trans or transgender: umbrella term for people with
diverse gender identities and expressions that differ
from stereotypical gender norms

9. Proving Discrimination Under the
Code
• To establish prima facie (on its face) discrimination
the person making a claim must show:
1. They have a characteristic protected by one or more of
the Code grounds (e.g. gender identity or gender
expression)
2. They experienced adverse or negative treatment or
impact in one of the social areas under the Code (e.g.
in accessing a service, housing or employment)
3. The protected characteristic was a factor in the
adverse treatment or impact

10. OHRC’s “Policy On Preventing Sexual
And Gender-based Harassment”
• Developed in 2011, updated in 2013
• Sexual harassment: “engaging in a course of
vexatious comment or conduct that is known or
ought to be known to be unwelcome”
• Gender-based harassment: “any behaviour that
polices and reinforces traditional heterosexual
gender norms”
• Just one type of sexual harassment
• Does not have to be motivated by sexual interest or
intent

11. Media Focus on Uniforms

12. CBC Investigation

13. Grassroots Mobilization
• In 2015, University of Alberta students launched a
website for servers and customers to share stories
about sexism while serving
• F.E.D.U.P. YEG (or Feminist Eatery Database —
Undercover Project)
• Site receives thousands of hits a day
• Students hope the negative publicity will motivate
change by employers
• CBC News, “Website F.E.D.U.P with sexism in YEG restaurants and bars,” March 20, 2015,
http://www.cbc.ca/news/canada/edmonton/website-f-e-d-u-p-with-sexism-in-yeg-restaurants-and-
bars-1.3002531

15. Paralegal Code of Conduct on
Media Appearances
• Rule 6 Duty to the Administration of Justice
• Public Appearances and Statements
• 6.01(4) So long as there is no infringement of the
paralegal's obligation to the client, the paralegal
profession, the courts, or the administration of justice,
a paralegal may communicate information to the media
and may make public appearances and statements.
• (4.1) A paralegal shall not communicate information to
the media or make public statements about a matter
before a tribunal if the paralegal knows or ought to
know that the information or statement will have a
substantial likelihood of materially prejudicing a party's
right to a fair trial or hearing.

16. OHRC Inquiry Report on Sexualized
and Gender-Based Dress Codes
• Released in March 2017 in response to media focus and
a series of complaints 2015-2016
• Emphasis that restaurant workers are a vulnerable
sector of the workforce
• Entry point for newcomers to Canada
• Low wages, reliance on tips, part-time hours
• More women in precarious roles and experiencing poverty
• >1/3 of hostesses, bartenders and servers are young women
under the age of 24, and are generally predominantly female
• Usually unaware of laws, and don’t have access to the legal
system

18. Are Dress Codes Legal?
• Employers are allowed to have dress codes
• But these codes cannot violate the Code
• Legitimate concerns for employers include promoting
company brand, a professional and consistent look,
distinguishing staff from patrons, and addressing health
and safety concerns
• Long history of decisions that explain the adverse
impacts of sex-requirements at work
• Any sex-based requirements should be based on
requirements of the job

19. Best Practices - Clothing
• Pants an option for all staff, instead of just women
• Same pants for men and women
• More options for women
• Wear tights with a skirt or kilt —eliminate “bare-leg”
policy
• Allow longer skirts, dresses, kilts; minimum length
instead of a maximum length
• Options with longer sleeves, higher necklines, etc.
• Create policies that are consistent for all staff or all
staff in a particular position

21. Best Practices – Accessories /
Grooming
• Make policies gender neutral and not sex-specific
• Jewelry requirements should be optional (with
guidelines)
• Avoid implying gender preferences
• Eliminate makeup or nail polish requirements, or
wearing hair down/style (i.e. optional)
• Some restaurants have still refused to implement this
policy
• OHRC: “Hair length and style preferences may relate to
sex, gender expression, race, ancestry, ethnic origin,
creed (religion) or other Code grounds.”

23. Gender Specific Policies
• Having separate policies for men and women does
not necessarily violate the Code, but invites
comparisons
• Unconscious bias and gender expectations should
not shape dress code requirements
• Photo images of clothing and shoe options for staff
can be helpful, but can also imply a preference for a
more revealing or stereotypical look for women

24. The Dress Code Checklist

25. Case Study
• Yvan is a self-identified male server, who works in a
national chain restaurant. The restaurant has a
dress code for it’s wait staff, requiring men to wear
trousers or jeans, and women to wear skirts or
dresses. There is no length requirement for the
skirt or dress.
• Yvan thinks this is still sexist, and decides to protest
by wearing skirts to work every day. His employer
sends him home for being dressed inappropriately.
• Has the restaurant violated the Human Rights
Code?

28. Doherty and Meehan v. Lodger's
International Ltd. (1981), 3 C.H.R.R.
D/628 (N.B. Bd.Inq.)
• The waitresses in a lounge were presented with a
new uniform, tuxedo style jackets and shorts,
accentuating sexuality
• They were told that wearing the uniform was a
condition of continued employment
• They objected to it, but wore it a few times under
protest
• The men were not required to wear the uniform
• Each waitress was awarded $1,000

30. Mottu v. MacLeod and Others,
2004 BCHRT 76
• 21-year-old female employee at nightclub, paid less
than $12/hour to sell beer out of a barrel
• Main source of income was tips
• Standard work attire at the club was black top with
skirts or pants
• Instructed for a special event to wear a beach
costume; Hawaiian shirts for men, bikini tops for
women
• She chose to wear a sweater over the bikini top

31. Mottu v. MacLeod and Others,
2004 BCHRT 76 (cont’d)
• Received the “cold shoulder” from her manager, was
provided with the less popular/more expensive drinks
instead of the popular beer barrel, and not provided a
name tag
• Was then provided with the least popular drinks to sell
on her subsequent shifts
• Tribunal awarded lost wages of $2,917.97, and
$3,000.00 compensation for injury to dignity, feelings
and self respect

32. Noseworthy v. Canton Restaurant
(2009), 69 C.H.R.R. D/33 (N.L. Bd.Inq.)
• Manager required female staff to wear a black mini
skirt, and perpetrated sexual harassment
• Tribunal awarded general damages for injury to dignity
of $5,000.00, (but did not award lost wages or costs —
the HRT has a different regime than other tribunals )
• Requirement that female employees wear skirts and
not trousers is sexist; the tribunal made a distinction
regarding female employees (paras 68-69)
• Lesson: Employers have to prove that any sex-based
differences in the dress code are legitimately linked to
the requirements of the job — bona fide occupational
requirement (BFOR)

33. Molos v. Café Mirage Inc., 2012
HRTO 851
• Manager and owners encouraged female servers
to wear tight, revealing clothing and excessive
makeup
• Comments were made about the server’s
appearance
• Praising for dress or skirt
• Criticizing appearance for clothes that were “too loose”
• Decision was on a motion to amend
• File ultimately settled (as do most HRTO cases)

36. McKenna v. Local Heroes
Stittsville, 2013 HRTO 1117
• Applicant worked at a sports bar part-time as a
waitress; became pregnant in July 2011
• Bar struggled financially; introduced new
management in November 2011
• New manager introduced a new dress code
• Applicant was concerned the form-fitting shirts would
highlight her pregnancy
• Manager agreed she would not have to wear it; she
was not given any further shifts until she contacted
HRLSC

37. McKenna v. Local Heroes Stittsville,
2013 HRTO 1117 (cont’d)
• Tribunal found bar wanted to re-brand by attracting
younger clientele by emphasizing sexual
attractiveness of staff
• Applicant was visibly pregnant, and regarded as
inconsistent with branding efforts
• Awarded $2,848.00 in lost income, and $17,000.00
for injury to dignity, feelings and self-respect
• Respondent ordered to complete the Ontario Human
Rights Commission’s basic on-line training “Human
Rights 101”

39. Lee v. NCR Leasing Inc. o/a
Aaron’s Stores, 2016 HRTO 1440
• Applicant worked as Sales Manager, selling new and
used furniture and appliances
• Application included allegations of sexual
harassment
• Employee made inquiries to her about summer
dress code for female employees
• Told her that “the shorter the skirt the better”, and to
show cleavage
• Applicant’s termination not based on performance,
but “ because the store is a male environment and
she was unable to work “with the guys””

40. Lee v. NCR Leasing Inc. o/a Aaron’s
Stores, 2016 HRTO 1440 (cont’d)
• Tribunal awarded $3,000 in damages inclusive of
interest for injury to dignity, feelings and self-
respect, and employer to complete online training
module
• Finding emphasized that persistent and frequent
Code violating conduct is not a condition for
adverse decision; one incident can suffice

41. Cooper v. The Buck & Ear Bar &
Grill and others, 2016 BCHRT 180
• Two new managers introduced what applicants,
described as “sexualized dress code” meant to
“accentuate the sexual attractiveness of young
female servers” at the pub
• Tribunal exercised discretion in late-filed complaint for
filing in the public interest (different regime)
• Discussed in Sones v. Squamish (District), 2017
BCSC 169, but application dismissed
• Dress code was no longer in place at time of termination
• Employer responded and conducted a thorough
investigation

42. Designing Compliant Policies
• Paralegals often look to litigation as main source of
revenue
• Based on historic patterns of work, and existing scope of
practice
• Legal advice should ideally be preventative in
nature, not just reactive
• Best approach is to develop robust policies and
promote education among the public
• The shift towards the paralegal as an educator
• Important role in assisting in the transformation of
society towards greater compliance in human rights

43. LSUC By-Law 4
• Activities authorized
• a licensee who holds a Class P1 license is
authorized to do any of the following:
….
2. Represent a party before…
iv. in the case of a proceeding before a tribunal
established under an Act of the Legislature of
Ontario or under an Act of Parliament, before the
tribunal...

44. But is it Only Related to a
Proceeding?
• 1. Give a party advice on his, her or it’s legal interests,
rights or responsibilities with respect to a proceeding
or the subject matter of a proceeding.
• …
• 5. Negotiate a party’s legal interests, rights or
responsibilities with respect to a proceeding or the
subject matter of a proceeding.
• 6. Select, draft, complete or revise, or assist in the
selection, drafting, completion or revision of, a
document that affects a party’s legal interests, rights or
responsibilities with respect to a proceeding or the
subject matter of a proceeding.

45. The Paralegal in a Solicitor-Type
Practice
• If developing workplace policies can fit under the
definition of By-law 4, it also reflects a shift of
paralegal practice into what we’ve historically
referred to as a “solicitor-type” practice
• Advantages include more stable revenue, long-term
repeat clients, potentially less stress with more
flexible and less imminent deadlines, broader and
more diverse professional offerings

47. Future Challenges in Ontario
• An employer’s new policy on dress codes won’t
magically fix all the sexualized issues in the
restaurant industry
• Some restaurants refuse to modify policies
• Others suggest that it’s not a problem
• Still others think that it might be justifiable by law

48. Heels are More Safe?

49. The Science Says…
• “This is the first review of the potential health
impact of high heels from an epidemiological
perspective …there is strong evidence that high
heels are associated with first-party injury…
The balance of the evidence regarding the
association between high heels and musculoskeletal
pain, taking into account the quality of the study,
supports the existence of causation. This is
corroborated by women's everyday experience of
high heels…”

50. The Science Says… (cont’d)
• “…some employers’ and social event organizers’ dress codes
and social event organizers require women to wear high
heels.
…In light of the findings of our review with regard to HV
[hallux valgus], pain and especially injury, we recommend that
health-related organizations engage in further constructive
dialogue with government and other policymakers regarding
the compulsion to wear high heels at work as well as social
events…”
• Barnish MS, Barnish J, High-heeled shoes and musculoskeletal injuries: a narrative systematic review,
BMJ Open 2016;6:e010053. doi: 10.1136/bmjopen-2015-010053

52. Amended existing footwear regulation (section 8.22) of the Occupational Health
and Safety Regulation, under the Workers Compensation Act.

54. Bill 168 (came into force June 15,
2010)
• Employers required to assist risks of workplace
violence and harassment
• Required to create policies and procedures for
investigation and complaints
• Required to introduce proper communication and
programs

55. Bill 132 (came into force Sept. 8,
2016)
• “workplace harassment” will be expanded to include
“workplace sexual harassment,” with more robust
definitions
• Requires employers’ programs to implement a workplace
harassment policy
• Employee experiencing sexual harassment and person
perpetrating the act must be informed in writing of
results of the employer’s investigation
• New employer defence to unfounded complaints of
workplace harassment
• “reasonable action” taken by an employer relating to the
management and direction of an employee or the workplace
does not constitute workplace harassment

56. Reasons Why it Won’t Change?
• Servers are free to “flaunt” as they like, as long as
employers don’t ask them to
• Appearance, however defined, often is related to tips
• Employees often have their own motivation and
incentive to dress in a certain way
• Changing employer practices doesn’t necessarily change
a sexist or misogynist society
• The key point here is there should be choice,
without pressure from the employer

57. Can Attractiveness be BFOR?
• All HRC Guidelines still subject to bona fide
occupational requirements
• Employers may claim that attractiveness is connected to
their image or brand
• “BFORs are legally legitimate if they have a sensible
connection to the business at hand. This is why Hooters is
allowed to hire only attractive young women, why strip
clubs are allowed to hire only attractive young women, and
why fashion shows are allowed to hire only attractive young
women.”
– Kevin Libin, Financial Post, March 9, 2016

58. Can Attractiveness be BFOR?
(cont’d)
• This would still be a high threshold to meet
• OHRC emphasizes that these appearance aspects are not
related to a person’s ability to perform the job.
• Test comes from SCC (Meiorin and subsequent
jurisprudence):
1. Was adopted for a purpose or goal that is rationally
connected to the function being performed
2. Was adopted in good faith, in the belief that it is
necessary to fulfill the purpose or goal
3. Is reasonably necessary to accomplish it’s purpose or
goal, in the sense that it is impossible to
accommodate the claimant without undue hardship

59. Does this Create a “Chill” in the
Workplace?
• Lee v. NCR Leasing Inc. at para 67,
• “…the Code ought not to be seen or perceived as
inhibiting free speech.”
• Differences of opinion are different than language
or words reasonably construed to form a condition
of employment
• This can include frequent and persistent taunting,
but a single incident is also prohibited
• Citing Bell v. Ladas, (1980), 1 C.H.R.R.D/1551392,
adopted by SCC in Janzen v. Platy Enterprises Ltd.

60. This All Goes Back to Importance
of Work
• "Work is one of the most fundamental aspects in a
person’s life, providing the individual with a means
of financial support and, as importantly, a
contributory role in society. A person’s employment
is an essential component of his or her sense of
identity, self-worth and emotional well-being.
Accordingly the conditions in which a person works
are highly significant in shaping the whole
compendium of psychological, emotional and
physical elements of a person’s dignity and self-
respect.“ - Chief Justice Dickson, Re: Public Employee Relations Act,
[1987] 1 SCR 313, para 91

61. Discussion?
• q/a
• Contact: omar@fleetstreetlaw.com
• Slides: omarha-redeye.com