By Erin Brandt.
Updated April 21, 2017 (Originally posted March 31, 2017)
Gender-based dress codes have lately become a media “hot topic”. In March, I joined the public discussion when I spoke to CBC’s Andrew Chang about BC Green party leader Andrew Weaver’s proposal to outlaw high heels in the workplace.
Much of the focus in that interview and elsewhere was the discriminatory effect of requiring female employees to wear high heels on the job. This was likely because Dr. Weaver’s originally proposed law explicitly sought to prevent gender-based discrimination in the workplace (although he also acknowledged the health and safety aspect of the issue, describing high heels as “extremely uncomfortable and unsafe”).
However, as I pointed out on tv and in an earlier version of this post, such gender-based discrimination is already prohibited by the British Columbia Human Rights Code (HRC). Under section 13, an employer may not refuse to employ (or continue to employ) a person or discriminate against them regarding employment or any employment term or condition because of the person’s sex (which includes gender), gender identity or expression, unless the employer can demonstrate a bona fide occupational requirement.
In my view, a workplace dress code that contains different requirements for men and women (such as high heels and/or makeup for women) violates existing human rights laws. Where an employee suffers adverse treatment as a result of gender-based workplace rules, she (or he) can file a complaint with the BC Human Rights Tribunal, and seek compensation for any wages lost as a result of the contravention, as well as compensation for injury to her dignity, feelings and self-respect.
In short, I argued at the time, Dr. Weaver’s proposed law made no significant change or addition to workers’ current rights and was not necessary to accomplish its anti-discriminatory goal.
What a difference a few weeks make.
Shortly after we published my original post on this topic, the BC government followed through on its commitment to ban mandatory high heels in the work place. In doing so, however, it departed from Dr. Weaver’s original proposal, and focused solely on workers’ health and safety. The existing “footwear” section of the Occupational Health and Safety Regulation was updated to ensure that workplace footwear is of a design, construction and material that allows the worker to safely perform their work and ensures that employers cannot require footwear contrary to this standard. The regulation now also includes “tripping” and “potential for musculoskeletal injury” as factors that must be considered to determine whether workers’ footwear is appropriate. No mention of discrimination, gender-based or otherwise, appears anywhere in the updated regulation. As the government itself pointed out in a news release, both the OHS Regulation and the HRC already provide protections against harassment or discrimination in the workplace.
Seems I wasn’t alone in thinking we didn’t need another law.
Interested to read more about gender discrimination in the workplace Check out the post by my colleague David Brown, Does the Restaurant Industry Discriminate Against Women?, here.
NOT LEGAL ADVICE. Information made available on the Kent Employment Law website in any form is for information purposes only. It is not, and should not be taken as, legal advice. You should not rely on, or take or fail to take any action, based upon this information. Never disregard professional legal advice or delay in seeking legal advice because of something you have read on this website. One of our lawyers would be pleased to discuss any specific legal concerns you may have.