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They Say Sex Sells

…But All At A Cost




It was hard for me to pick what to write about for my first article of my last year at Osgoode. I was mulling over all the topical controversial news topics we have in the media currently, from the dreaded US elections, ongoing issues in the Middle East, bans on the burkini in France, etc. However, lately I have observed one issue which has consistently infuriated me – dress codes in restaurants. Worse is Osgoode’s support of one of these restaurants during the welcome orientation this year.


The issue of dress codes was a very popular issue in the past year, where interest was spiked when the CBC Marketplace inquiry raised concerns about restaurants who required female servers to wear short skirts, tight dresses, high heels, and low-cut tops to work. This media coverage prompted nation-wide attention to the issue of human rights and employment standards regarding dress codes. The Ontario Human Rights Commission (“OHRC”) issued a position policy on gender specific dress codes and called for employers to review their dress codes and remove discriminatory requirements.


The OHRC outlined human rights decisions dating back to the 1980’s which found that dress code requirements that create adverse impacts based on sex violate human rights laws. For example, in McKenna v Local Heroes Stittsville 2013 HRTO 1117 a server’s shifts were cut after the female employee voiced concerns about wearing tight clothing, and wished to wear looser clothing to not draw attention to her pregnancy. The Human Rights Tribunal of Ontario (“HRTO”) found the employer wanted to re-brand the sports bar and emphasize sexual attractiveness of staff, and therefore the HRTO found the employer had discriminated against the female employee. The woman was awarded $17,000 for injuries to dignity and nearly $3,000 in lost wages.


Additionally, in a British Columbia Human Rights case, Mottu v MacLeod [2004] BCHRTD No 68 50 CHHR D/2223, a female server was required to wear a bikini top at a special work event. She opted to wear clothing on top of her bikini and complained to her union and employer. The female was disciplined, assigned a less desirable position, and her hours were reduced. The British Columbia Human Rights Tribunal obviously found these actions were discriminatory.


Now, one may wonder why I decided to bring up this issue months after it received media attention – over the past summer close to my home, I have walked by on numerous occasions an establishment on the Esplanade, which similar to the Mottu v MacLeod case requires female servers to wear a scantily clad bikini top with an equally scantily clad bottom piece. I am assuming this is a dress code requirement within this establishment, as I find it hard to believe this many women would choose to dress in the exact same way each working day. Moreover, I have only seen female servers with a particular body type working there. To be fair I have never been inside this establishment, and have only witnessed the servers on the patio.


However, each time I walked by I would be infuriated thinking about the sexist representations being reproduced and often thought – what if one of the workers became pregnant, how does this affect their job? Or what if they don’t choose to wear this clothing, and similar to the aforementioned case they ask to wear more clothing, what are the repercussions? No one should be forced to find another job because they don’t want to be discriminated against. Once again, I realize this is all speculation as I have not spoken to employees at this establishment, but I do feel the representations are rooted and representative of larger issues of sexism and discrimination in society, where women are routinely sexually objectified.


Having these types of gender-specific dress codes harms the dignity of women, reinforce sexist stereotypes, and places females in a norm reproducing box. Furthermore, while this is sex discrimination, it can also intersect and reproduce other forms of discrimination. For example, when we think of the types of people being excluded from the job with certain religious beliefs or being possibly forced to divert from their religious beliefs. Similarly, what about the Trans community, these types of representations reinforce a norm reproducing specific definition of what a woman is supposed to attain to be.


I also reject the most common response of, “what if these women choose to dress this way.” Believing this is all an independent female choice may be the truth for some women, but assuming this is a choice especially when connected to employment is divergent of the context of women’s economic financial needs and the history of reproduction of gender norms, gender discrimination, and sexist stereotypes.


I was further disheartened to see Osgoode had chosen this establishment to be part of their orientation week events this year. Osgoode prides itself on furthering social justice issues, and this is a part of Osgoode I continue to be proud of. However, I do feel this choice was not an appropriate way to welcome students, and show first year students what Osgoode is about. I know I would have felt quite uncomfortable going there, and I am sure other students felt the same way.


Overall, this sexist representation of women is not isolated to one establishment, it is part of an ongoing ubiquitous issue taking many shapes in society. While human rights cases across Canada have dealt with this issue, I am in hopes of the law dealing with this issue in a more proactive manner, rather than dealing with it after it has had an adverse impact on a female. There is an increased call for employment standards to address this issue, especially within the restaurant industry. At the moment, there is the perception of “choice,” but in reality, this is commonly not the case when employment and people’s subsistence is linked to job security.