Saturday, 3 February 2018

Employers Can No Longer Require Employees to Wear High Heel Shoes – Except in “Entertainment and Advertising Industry”

Can an employer force an employee to wear a shoe with an elevated heel – aka “high heels” – if wearing such shoes is not required for the worker to perform his or her work safely?

As of November 27, 2017, and as a result of the implementation of the Fair Workplaces, Better Jobs Act, 2017, S.O. 2017 C.22, formerly Bill 148, the answer to that question is “no” - unless you work in the “entertainment and advertising industry”.

Lead Up

This blog previously looked at the issue of high heels in the post Is a legal ban on requiring high heeled shoes in the workplace inevitable?. In that posted, authored in March of 2017, I wrote the following:

On March 8, 2017, Dr. Andrew Weaver, Member of the Legislative Assembly of British Columbia for Oak Bay-Gordon Head (Green) introduced a Private Member’s Bill, Bill M237 - Workers Compensation Amendment Act, 2017. As the explanatory note to the bill explained, that bill would have amended the BC Workers Compensation Act, RSBC 1996, c. 492, by prohibiting employers from setting varying footwear requirements for their employees based on gender, gender expression or gender identity. Consequently, the law (if it had passed) would have made employers unable to require select employees to wear high heels.

The bill died on the order paper when the legislature rose on May 9th, ahead of the upcoming provincial election. It never really had a chance.

But, is such a ‘ban’ either coming to Ontario or inevitable? I think so.

What I found interesting about the proposed law is that it would have amended the Workers Compensation Act, not the Human Rights Code (or whatever it is called in BC), which is what I would have expected.

When I went looking for cases on CanLII concerning high heels and dress codes, I was surprised to see that I could not find a human rights case directly on point. Sure, some come close, but nothing close enough to merit a post on its own; hence this post.

What such a search did reveal however was that there are a number of workers compensation cases to consider the wearing of high heels. Those cases clearly demonstrate a correlation between the frequent wearing of high heeled shoes and back problems. I’m not a doctor, but the doctors involved in those cases frequently opined on such a problem; I’m hardly surprised.

What those cases suggest to me is that there was considerable merit in placing a statutory prohibition on high heels in the Workers Compensation Act.

But what about human rights legislation? Much like pregnancy, the wearing of high heels primarily (if not exclusively) effects women and those who identify as women. I am going to go out on a limb here, but I seriously doubt that there is any business out there requiring their male employees to wear high heeled shoes. What does that mean? It means an obligation to wear high heels (with all of the inherent health and safety issues) effects a group of employees based exclusively on their sex, sexual orientation, gender identity, gender expression; all protected grounds under Ontario’s Human Rights Code. Requiring an employee to do something because of who they are, as compared to what they do, is illegally discriminatory. Any decision of the Human Rights Tribunal of Ontario expressly saying so would create a common-law probation.

So is an express statutory prohibition actually necessary given the foregoing? It is at least arguable that a ‘prohibition’ on discriminatory dress codes already exists. On this point consider the case of Molos v. Café Mirage Inc., 2012 HRTO 851 (CanLII). To that end, an express prohibition, such as the one proposed in British Columbia, could be seen as superfluous and unnecessary.

Personally, I think an express statutory prohibition is coming. Whether the same arises as a result of political opportunism or pandering, or whether it arises as a result of an actual recognition of the health and safety issues inherent in the forced wearing of such footwear, I think we’ll see such a prohibition in Ontario within the next five years. Who know, perhaps this blog will be an impetus for such change. (It’s happened before! See my post: Unpaid Interns Become "Workers" Under OHSA, under the heading “Did I Call It?”).

The Law

Bill 148 has received a lot of attention, and with good reason, for its changes to the Employment Standards Act, 2000. However, in addition to amending that statute, Bill 148 also amended the Occupational Health and Safety Act.

Schedule 3 to the Fair Workplaces, Better Jobs Act, 2017, S.O. 2017 C.22, which contains all of one pertinent section, amends OHSA by adding section 25.1(1), which now provides as follows:

25.1 (1) An employer shall not require a worker to wear footwear with an elevated heel unless it is required for the worker to perform his or her work safely.

Subsection 25.1(2) provides an exception, however, by confirming that subection 25.1(1) does not apply with respect to an employer of a worker who works as a performer in the “entertainment and advertising industry”.

Subection 25.1(3) provides a definition of the “entertainment and advertising industry” as follows:

“entertainment and advertising industry” means the industry of producing,

(a) live or broadcast performances, or

(b) visual, audio or audio-visual recordings of performances, in any medium or format;

The word “performance” is also a defined term, defined to mean “a performance of any kind, including theatre, dance, ice skating, comedy, musical productions, variety, circus, concerts, opera, modelling and voice-overs, and “performer” has a corresponding meaning.

Commentary

Three comments immediately come to mind.

First, why on earth would persons engaged in “voice-overs” be required to wear high heels? Ditto anyone engaged in an audio recording. If no one is going to see these people, who cares what they are wearing? The mind boggles.

Second, and without being too crass, clearly the government recognizes that there is a profession in which the wearing of high-heel shoes is a bona finds operational requirement. How “adult” of them.

Finally, why are we including “modelling” in the “advertising” industry as an exemption from the application of this law? If anyone can think of an example of anything other than a woman standing beside a car to which this would apply, please add it in the comments, because this is all I can see:


And once again, let’s be honest here, no advertiser is asking a man to stand beside an automobile for 10 hours in a six-inch pump. (Again, feel free to correct me if I am wrong.)

And so, and without being too punny, while this change to the law is clearly one step forward, it is also only one step, leaving workers, to whom this law ought to have applied, still-etto waiting for change.

Takeaways for Employees with Labour Pains

If you are a worker in Ontario and you have concerns with respect to what you are being required to wear at work, contact the professional, experienced and cost-effective employment lawyers for employees at Ottawa's Kelly Santini LLP; we would be happy to be of service to you.

Takeaways for Employers with Labour Pains

With a prohibition on requiring employees to wear high heels now in place for most industries, if you are an employer in Ontario and have questions about the legality of your dress code (whether formal or informal), contact the professional, experienced and cost-effective employment lawyers for employers at Ottawa's Kelly Santini LLP; we would be happy to be of service to your business or organization.

Contact Me

To reach the author of this blog, Sean Bawden, email sbawden@kellysantini.com or call 613.238.6321 x260.

Sean P. Bawden is a partner with Kelly Santini LLP, located in Ottawa, Ontario, Canada. He practices in the areas of employment law and civil litigation. He has also taught Trial Advocacy for Paralegals and Small Claims Court Practice at Algonquin College in Ottawa.

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As always, everyone’s situation is different. The above is not intended to be legal advice for any particular situation. It is always prudent to seek professional legal advice before making any decisions with respect to your own case.

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