Within all aspects of society, we are governed by a variety of rules, regulations and standards which attempt to avoid chaos, however sometimes in the application of these rules, regulations and standards, they can seem arbitrary and even amount to discrimination.
Regardless of your profession, discrimination is found across all fields and workplaces impacting a person’s daily life and creating barriers to success. In a recent example, the U.S Open apologized to a tennis player who fixed her shirt on the court, flashing her sports bra and was issued a warning. Similar warnings have not historically been given to male tennis players, who frequently change or remove their shirts between games and often sit shirtless for extended periods during changeovers. The policy has since been clarified to ensure similar incidents don’t happen in the future.
Similarly, a B.C woman recently filed a human rights complaint about demands she wear a bra at work. The question becomes, can a workplace mandate a woman’s undergarments? If that is the case, does it matter whether the individual is male or female or should the deciding factor be their cup size? These questions show that in application the rules are discriminatory, and the requirements may not always be divided on along gender lines.
Placing specific conditions on women’s appearance or dress in the workplace may in fact violate human rights laws. This is particularly prevalent in service-industry jobs where some places require women to wear high heels, tight skirts and heavy makeup. Female staff can feel pressured to wearing revealing outfits or risk losing their shifts, or worse, their job. This emphasizes the unfairness women face within the workplace and the importance of continuing to stand up for your rights within the workplace.
Recent amendments to the Occupation Health and Safety Act brought in by Bill 148 attempted to address this issue by disallowing employers from requiring workers to wear footwear with an elevated heel unless needed for worker’s safety, although workers in the entertainment and advertising industries are exempt. The Ontario Human Rights Commission has issued policy papers calling for the end of gender-specific dressing requirements and some women have been successful in making complaints to the Human Rights Tribunal, but usually after their refusal to dress provocatively cost them their job.
There is a ‘legal’ way to discriminate in the workplace called the bona fide occupational requirement. For example, to become a firefighter there are requirements that a candidate has to be able to carry a certain amount of weight. While this may be considered discrimination on the basis of a disability, it is a bona fide occupational requirement in that firefighters are forced to lift people in an emergency situation.
An employer is permitted to discriminate in the workplace if they are able to demonstrate that the requirement is objectively reasonable, made honestly, in good faith and there is a sincere belief that it is made in the interest of effectiveness, safety and productivity. However, any rule made with the intention of excluding an individual or group will automatically fail.
If you believe you have faced discrimination in the workplace or if you are an employer looking for an audit of your workplace policies, feel free to contact Monkhouse Law for a free consultation today.