Sunday, 19 March 2017

Is a legal ban on requiring high heeled shoes in the workplace inevitable?

(c) istock/grinvalds

Is a legal ban on requiring high heeled shoes in the workplace inevitable? Probably.

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. CafĂ© 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?”).

UPDATE: Following the passage of Bill 148, only employees employed in the “entertainment and advertising industry” can be required to wear high heels. See: Employers Can No Longer Require Employees to Wear High Heel Shoes – Except in “Entertainment and Advertising Industry”.

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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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