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Dress Code Complaint Reveals Societal Cleavage

A Vancouver bartender named Karolina Bil has alleged gender-based discrimination against the owners of the Shark Club bar. Her complaint reveals the cleavage separating who we are as a society from who we, perhaps, wish we could be.
 
Ms. Bil alleges the club has a strict dress code for female employees including high-heeled shoes, miniskirts, shirts exposing cleavage, and hair and makeup aimed at achieving “class and sex appeal”. Her complaint states that she was too afraid to discuss the uniform issue with representatives of her employer.
 
In her complaint, she also alleges that it was made clear to her that her job was to talk to, and entertain, the customers at the bar. She described customers inappropriately propositioning her and stated that it was as a result of the style of dress she was required to wear.
 
The employer denied having discriminated in the manner alleged by Ms. Bil and made a preliminary application to have her complaint dismissed. If successful, that application would have resulted in the early demise of Bil’s complaint (meaning that she would never receive the opportunity to prove her allegations at a hearing).
 
The employer based its application for dismissal on the premise that the acts complained of do not contravene the B.C. Human Rights Code. The Human Rights Tribunal recently issued a ruling in response to that application, confirming its approach to such applications.
 
Preliminary determinations of this type are made on the basis of the allegations set out on the face of the complaint without any reference to any alternative evidence or explanation which the respondent might put forward. In effect, the Tribunal simply asks whether, if proven, the content of the complaint could amount to a breach of the Code.
 
The Tribunal rejected the Shark Club’s application for dismissal, reiterating the well-established premise that sexual harassment amounts to sex (or gender) discrimination. In addition, it stated that Ms. Bil’s allegations about the bar’s sexually-based dress code requirements could, if proven, amount to sex discrimination.
 
That being the case, Ms. Bil’s complaint will now proceed. Whether it will ever make it to a hearing, such that a decision can be made on whether or not the Shark Club was discriminating against her, is another matter. 
 
It is worth emphasizing that Ms. Bil’s allegations about the Shark Club’s dress code for female employees have not yet been proven.
 
This strikes me as one of those disputes demonstrating the clash between who we are as a society and who we, perhaps, wish we could be.
 
I say that because every city I’ve ever visited in B.C. has mainstream restaurants and bars in which the, shall I say, assets of female bartenders and servers are on prominent display. This has probably been the case for longer than anyone can remember and surely most of us have patronized these establishments.
 
It’s not just sports bars utilizing this time-proven strategy for attracting business - many upscale restaurants seemingly make this one of their primary selling features. And, certainly, every applicant for a job at such an establishment must know what she’s getting into.
 
So, you might ask, if everybody’s doing it and the females exposed to this treatment enter into that situation with eyes open what’s the problem?
 
The problem, if you happen to be an operator of a bar or restaurant, is that the Code contains rules about how employers should and should not treat their employees. These rules presumably reflect what we, as a society, consider to be desirable standards of conduct.
 
One of those rules is, as the Tribunal stated, that sexually-based dress code requirements can amount to discrimination. 
 
Employees are not permitted to “contract out” of their statutory human rights. So, even a practice that is widespread and well known and seemingly accepted by the general public and by the parties involved in the employment relationship can be a breach of the Code.
 
If Ms. Bil’s complaint ever does make it to a full hearing, and if the Tribunal determines that the Shark Club imposes dress requirements that amount to discrimination, that would be a reflection of who we perhaps wish we could be as a society.
 
But I don’t think it will be an accurate reflection of who we are as a society, at least at the present time.
 
Robert Smithson is a lawyer in Kelowna practicing exclusively in the area of labour and employment law. For more information about his practice, or to view past “Legal Ease” columns, log onto www.pushormitchell.com.