Dress Codes Constituting Sexual Harassment

July 22nd, 2015 by

By Victoria Yang

What typically comes to mind when you think dress codes for work? A crisp suit perhaps. Or maybe a uniform like those electric blue t-shirts at McDonald’s back in the day that would inevitably give you a farmer’s tan on one arm if you worked at the drive-thru window.

What if you landed a serving job at a local restaurant and was promptly told afterwards that for work you must wear “sleek high-heeled shoes, miniskirts, shirts showing cleavage, and hair and makeup done with class and sex appeal”? That’s exactly what happened to the complainant in Bil v Northland Properties. This issue surprisingly, has scarcely been addressed by the courts and human rights tribunals in Canada.

In the case described above, the British Columbia Human Rights Tribunal found that if the complaints are proven at a hearing, they could amount to a breach of the Human Rights Code on the basis of sexual harassment. The Supreme Court in found in Janzen v Platy Enterprises Ltd. that sexual harassment is a form of discrimination on the basis of sex.

What is sexual harassment? Although various definitions exist, a common thread is the use of a position of power to import sexual requirements into the workplace, negatively altering the working conditions of employees forced to contend with sexual demands.

This leads to the question of what is enough to constitute sexual harassment? How short does a skirt have to be, and how low of a top?

In Ontario Human Rights Commission v Chrysalis Restaurant Enterprises Inc., the waitresses of a disco were required to wear harem outfits as a condition of their employment while waiters wore regular street attire. The harem outfits consisted of sheer pants with slits extending from the ankle to the upper part of the thigh, along with a wrap-around top. The Divisional Court agreed with the Board of Inquiry under the Ontario Human Rights Code and found that because the uniform was not so ‘immodest’ or ‘sexist’ as to transform the waitresses into entertainers (among other reasons), the waitresses were not discriminated on the ground of sex.

So, how low would you go?

For more information or any other questions regarding workplace sexual harassment and any other employment/labour law matters, please contact Marty Rabinovitch.

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