Thorp case illustrates the low spark of high-heeled job requirements

Much ado has been made about the new rules that say employers can’t require women to wear high heels at work.

The issue first came to my attention when the New York Times in January ran a story about an actress in England who was sent home from a temporary clerical assignment without pay because she wore flat shoes, which the Times described as “chic but sensible.” Her temp agency told her that in the future she had to wear heels that were at least two inches high.

I don’t know how this column will be laid out, but generally 70 words in a column is two inches. So the amount of text in the first two paragraphs is the height of the heels required. Not insignificant, even to those who occasionally enjoy wearing heels (and I’m not necessarily in that category).

The woman, Nicola Thorp, dug in her, albeit flat, heels and started a petition calling for a law that banned employers from requiring women to wear heels.

In January, after two years, an inquiry overseen by two parliamentary committees determined that the temp agency had in fact broken the law by requiring Thorp to wear heels. In other words, the law was already in place.

The issue surfaced in British Columbia when BC Green Party leader Andrew Weaver introduced a private member’s bill in recognition of International Women’s Day that would have made it illegal for employers in B.C. to require women to wear high heels.

But, as in England, and as my colleague, Erin Brandt, noted on CBC television last month , a law prohibiting employers from requiring women to wear high heels at work already exists in B.C. It’s called the Human Rights Code.

Under the code, a person cannot refuse to employ someone or continue to employ someone, or discriminate against someone in the workplace, based on a number of characteristics, including race, colour, religion, age or sex, which includes gender. That means employers and potential employers must treat the sexes the same. The exception is if there is a bona fide work-related reason to do so, known in the industry as BFORQ (bona fide occupational requirement or qualification).

That goes beyond shoes. The parliamentary committees said they received hundreds of complaints from women who had been told to go as far as dye their hair blond, wear revealing outfits and constantly reapply makeup.

Yet we see discrimination based on sex all the time, especially in the service industry, where female servers are asked to wear revealing clothes while their male counterparts are in black pants and white shirts, my colleague, David Brown, points out in a blog . And rarely do you see any women under 30 working the tables. Hooters, well known for its skimpily clad female servers, argues that the servers are actually entertainers who audition for the role, hence requiring them to wear certain outfits is a bona fide job requirement. Brown doesn’t think that would fly in Canada.

So what is a BFORQ? The Supreme Court of Canada, in a case involving a B.C. female firefighter, said to meet the test an employer had to show that:

•the purpose of the standard was rationally connected to the performance of the job;

•the standard was adopted in a bona fide belief that it was necessary to fulfil a legitimate work-related purpose; and

•the standard was reasonably necessary to the accomplishment of that purpose.

In the firefighter case, Tawney Meiorin had been a firefighter for three years when new firefighter fitness tests were instituted. Meiorin passed three out of the four tests, but she couldn’t run 2.5 kilometres in the time required. The Supreme Court of Canada found that requiring women to meet the same fitness tests as men was discriminatory and not necessary because Meiorin had already proved she could do the job.

All that being said, Weaver’s private member’s bill was not all for naught because it led the government to amend the Workers Compensation Act to ensure employers did not set varying footwear requirements for their employees based on gender, gender expression or gender identity. In other words, according to the explanatory note that accompanied the bill, employers would not be able to require select employees to wear high heels. Being under the Workers Compensation Act, the change was made for the protection of the health and safety of workers.

The discussion around high heels also brought the issue of discriminatory work requirements front and centre, and, as Brandt said, that’s a good thing.

Fiona Anderson (fiona@kentemploymentlaw.com), former editor-in-chief of Business in Vancouver, is now an employment lawyer with Kent Employment Law’s Victoria office.

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