Should restaurant servers have to wear high heels?

Last month a number of restaurants came under fire for having dress codes that required women to wear high heels on the job.

While restaurants claimed they only wanted their workers to look “polished” on the job, women reported that their managers made sexist comments about men “checking them out” in high heels and ignored their health concerns. One woman told Global News that her employer’s policy meant she ultimately needed surgery.Another claimed to have been forced to wear heels, or forgo shifts, even after providing her manager with a doctor’s note saying she needed several weeks to recover from injuries inflicted by a shift in heels. While the server quit her job on her doctor’s advice, the restaurant is now reconsidering its policy.

As some one with lots of experience working in the service sector, I’m familiar with impractical dress codes and the physical toll of an on-your-feet and in-heels job. Ultimately, a foot injury and a supportive manager got me excused from the high heels mandate after five years of blisters.

Are these dress codes sex discrimination?

While recent news articles and my personal experience indicates that these kinds of dress codes are common, not many cases about high heels or sexy dress codes have made their way to courts or tribunals.

At least one early decision of the Ontario Human Rights Tribunal dismissed complaints by two servers who worked at a bar where they had to wear “harem outfits” at work while their male counterparts wore t-shirts and dark trousers. On judicial review the Superior Court agreed that dress codes could constitute discrimination on the basis of sex in some circumstances, but ultimately found that these servers hadn’t faced illegal discrimination.

Changing attitudes towards women and more experience interpreting the Human Rights Code might mean that the same case would be decided differently today. The Ontario Human Rights Commission cautions that employers faced with a human rights complaint would have to show that gendered differences in its dress code are based on a “bona fide” or real job requirement. According to the Commission, employers can run into trouble if they hold women to a higher standard of dress than men or expect them to dress sexily to attract customers.

In any case, high heels are clearly different from other sexy clothes – they can and do cause worker injury. Here in Ontario, a few Workplace Safety Insurance & Appeals Tribunal decisions hint at a link between injury and high heels for workers in the food service industry. However, just one decision of that tribunal has held that a worker was entitled to benefits after a high heel related injury. In that case, the worker worked on his feet and his plantar fasciitis was attributed, in part, to the wearing of high heels. If your employer’s dress code is causing you pain and injury, you may not only have a worker’s compensation claim, you may have a human rights claim, too: high heel dress codes put women at risk for injuries that their male co-workers don’t face.

In addition to being sexist and dangerous, dress codes designed to make workers more sexually appealing to customers may be discrimination on the basis of religion, gender identity, sexual orientation or disability. There are lots of reasons an employee might be unable or unwilling to don stilettos.

DECISIONS DISCUSSED:

Re Ontario Human Rights Commission et al. and Chrysalis Restaurant Enterprises Inc. et al., 1987 CanLII 4277 (ON SC)

Decision No. 2291/07, 2007 ONWSIAT 3154 (CanLII)

This blog is for educational and informational purposes only and does not constitute legal advice. If you would like legal advice or have questions about your particular workplace problems please contact a lawyer. Our lawyers’ information is available on our Contact Us page.

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NEWS: IN-FLIGHT PARAMEDICS ARE FEDERALLY REGULATED, CANADA INDUSTRIAL RELATIONS BOARD RULES

The Canada Industrial Relations Board has certified a bargaining unit including in-flight paramedics its first decision to consider whether air ambulance services fall under federal or provincial jurisdiction.

Represented by MMW Law’s Sarah Molyneaux, United Food & Commercial Workers Local 175 argued that their new members’ employer was federally regulated because it was, in essence, an airline and because its airplanes and employees crossed provincial and national borders. The employer argued that the Board lacked the statutory and constitutional jurisdiction to certify a unit including its paramedics, who it contended were subject to provincial regulation because they worked for a healthcare provider.

The Board agreed with the Union and found that:

“the habitual activity of the employer’s operations is that of air transportation on its airplanes. For whom or what end it flies these airplanes does not alter that it is in the business of providing air transportation. Since Parliament has seen fit to give the Board explicit jurisdiction over aircrafts and air transportation, the Board find that Northern Air’s entire operations, including its air ambulance operations, constitute a federal undertaking”

The employer has applied for judicial review of this matter at the Federal Court of Appeal.

DECISIONS DISCUSSED:

United Food & Commercial Workers, Local 175 v Northern Air Solutions Inc, 2015 CIRB 773

This blog is for educational and informational purposes only and does not constitute legal advice. If you would like legal advice or have questions about your particular workplace problems please contact a lawyer. Our lawyers’ information is available on our Contact Us page.

COMMENTING POLICY: Comments may be subject to moderation. Commenters should refrain from using offensive or discriminatory language and from disclosing any personal or potentially privileged information.