Stomping out a work place requirement

Mr. Mason has just opened a new restaurant that he hopes will compete with such large restaurant chains as The Keg, Joey’s and Earl’s.
David Alli

When you attend the restaurant you notice that your server, Katherine, is knowledgeable, polite and gracefully glides between tables and patrons to accurately serve your order all while wearing very high heels. You don’t pay any real attention as the sight of a server in a short skirt and high heels has become somewhat of a norm at many restaurants you attend. You pay your bill and leave a tip, and you plan to attend again in the near future.

After six hours, Katherine’s shift ends and the first thing she does is kick off her high heels and put on a pair of running shoes. About a week later, Katherine decides to substitute her black running shoes in place of her high heels because her feet and back are in pain after working several long shifts at the restaurant. During this shift, Mason politely reminds Katherine that her running shoes are not part of the dress code at work, and Katherine insists that it is not fair that she is required to wear uncomfortable shoes while her male counterparts can wear regular black shoes. Mr. Mason refuses to change the dress code policy as he has seen many large restaurant chains that have staff dressed similarly to his.

Shortly thereafter, Mr. Mason finds himself being served with documents that allege that his dress code for female employees is discriminatory and he is being sued by Katherine. A hearing takes place at the Ontario Human Rights Tribunal, and it is decided that Mason has to pay damages to Katherine as well as re-write his employee dress code to not be discriminatory.

I can say truthfully that I am a grown man who has never worn heels. I have nothing particularly against them, but gender norms aside, they do not seem very comfortable or safe to wear. Nevertheless, most women that I know teeter about four to five inches off the ground, and function confidently in their high heels.

I would imagine that if a woman chose to slip on a pair of ballet flats and carry on with her day, she would not be in violation of any rules that could get her in trouble at work. However, as seen in Katherine’s case, workplace dress codes that apply to women in certain fields can foist unrealistic requirements upon them, and have detrimental impacts on their health.

In British Columbia, the government recently moved toward addressing the issue of mandatory high heels in the work place. A bill was introduced by Andrew Weaver, the Green Party leader, to prevent different footwear requirements for different genders. Interestingly, the issue was not framed as a gender one but rather a health and safety issue, as there is a risk of physical injury from slipping or falling, as well as possible damage to the feet, legs, and back from prolonged wearing of high heels while at work.

The B.C government amended its Occupational Health and Safety Regulations under the Workers Compensation Act to reflect the desired change to have standardized health and safety requirements for all footwear in the workplace.

Section 8.22 of the Regulations requires that footwear must be “of a design, construction, and material appropriate to the protection required and that allows the worker to safely perform the worker’s work.” Further, when determining what qualifies as appropriate footwear the following factors must be considered: slipping, tripping, uneven terrain, abrasion, ankle protection and foot support, crushing potential, potential for musculoskeletal injury, temperature extremes, corrosive substances, puncture hazards, electrical shock and any other recognizable hazard. Accordingly, the most critical aspect of an employee’s footwear is its safety and suitability to prevent injury. The changes to the B.C Regulations will be enforced by WorkSafeBC, the body that oversees workers safety in the province. WorkSafeBC will also be developing a guideline for employers and employees to support the amended regulation.

Many critics of mandatory high heels have been vocal that the shoes on women’s feet are part of a much larger issue of sexualizing women in the workplace, which could lead to workplace harassment and other serious problems.

In Ontario, the Human Rights Commission has put forward a policy position that addresses more than just shoes, but also the requirements for female workers to wear low-cut tops or short skirts as the same could violate the Ontario Human Rights Code. In fact, in Ontario, there are human rights decisions dating back to the 1980s that have found that dress code requirements can have an adverse impact on women’s rights in the workplace.

Over a year ago, the Ontario Human Rights Commission had issued a warning to such large restaurant chains as The Keg and Earl’s over their allegedly discriminatory dress codes. At this point, the Ontario Human Rights Commission has reported that the response from companies has been encouraging, as all of them are either developing new policies or amending existing ones. For example, Earl’s now permits their female worker to wear black pants as opposed to black skirts if they so choose. Nevertheless, the Ontario government has not taken the same steps as in B.C. whereby they have amended regulations under workplace safety legislation.

The amended Regulation in B.C. and the policy position by the Ontario Human Rights Commission does not mean that women cannot wear high heels. On the contrary, women can choose to wear shoes that they wish as long as they are suitable for the particular work environment. Showing up to a construction site in a pair of heels will obviously not be permitted, but if a woman chooses to wear high heels during her shift as a hostess that is absolutely permissible.

Any new female workers starting at Mason’s restaurant may or may not choose to wear high heels. However, they can be rest assured that Mr. Mason cannot require them to slip into a pair of five-inch Prada pumps. Mr. Mason will continue to have the right to dictate what the dress code will be for his employees, but he has to make sure that he complies with health and safety standards and that his policy is not discriminatory in its application.

An employer is under many obligations to ensure that their company is operating in accordance with the law. Legislation is frequently changing, especially in the area of workplace safety. Being pro-active and seeking legal counsel before implementing policies and procedures in the workplace can result in a substantial savings to a company in the long run, as it minimizes the risk of liability in the future.

David Alli of Brampton, Ont.- based Lawrences represents and advises employers in all areas of employment law.
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