No Boys Allowed

 First, in the Sexes' intermix'd connection,
One sacred Right of Woman is, protection. – Robbie Burns

As we discussed last week, the exclusion of women from traditionally male institutions and programs has been repeatedly challenged and isn’t holding up.  Is the same true for women’s only institutions and programs? Anecdotally, it would be easy to answer in the negative.  In the news last week, the Georgian Court hotel in Vancouver announced it was looking at expanding its Women Only floor to add a second. In an interview on the CBC, hotel employee Lisa Jackson, stated “It’s not meant to be exclusionary whatsoever”. That, of course, is absurd. It is absolutely meant to exclude men.  A hotel in Denmark which apparently was one of the first to offer the exclusive floors was found to be in violation of that country’s discrimination laws. There are many other hotels that provide the same service now. Women’s fitness clubs also have also proliferated and seem to have survived various challenges. Even where the challenges have been made by transsexuals and transgendered person.  In Macdonald v. Downtown Health Club.  The women’s only standard is a high one. For example, in Nixon v.  The Vancouver Rape Crisis Centre, the Centre was justified in excluding  Nixon form a counseling position because she hadn’t always been a woman.   A few weeks back I mentioned the Hooters case settling with Hooters explaining that being female was a bona fide occupational requirement for its job of serving beer and chicken wings.  In a recent court filing, a man claims he was fired from late night show host Jimmy Fallon’s production team because Fallon prefers to hire women.  Ladies’ nights at Night Clubs have also been mostly unsuccessfully challenged. Is the law really lopsided? Are men getting a bad deal?

In one recent Ontario case, Carter v. EFTO,  a male union member of a union comprised almost entirely of women complained that  “the policies and practices of the Elementary Teachers Federation of Ontario (the “ETFO”) exclude men from approximately 50% of all education programs and also exclude men from 5 out of the 14 elected Executive positions. The Human Rights Tribunal dismissed the case on the basis that women have been historically underrepresented within the EFTO at annual conferences, as local presidents and  as chief negotiators. Relying upon the fact that women face systemic discrimination in society and in the EFTO in particular the panel noted that the EFTO’s programs were designed to relieve against that discrimination. Indeed, s. 14 of the Ontario Human Rights Code provides:

A right under Part I [ the right to be free from discrimination] is not infringed by the implementation of a special program designed to relieve hardship or economic disadvantage or to assist disadvantaged persons or groups to achieve or attempt to achieve equal opportunity or that is likely to contribute to the elimination of the infringement of rights under Part I.

Interestingly, the Tribunal held, based on a Court of Appeal decision, that this section precludes members of historically privileged groups, i.e. , men,  from even challenging the law. In other words, an attack on affirmative action programs, or “reverse discrimination” can not be made by anyone other than a member of an historically disadvantaged group.  Accordingly, Mr. Carter’s challenge to his union’s programs was dismissed on the basis that he did not have the legal right to make a complaint.

Affirmative action programs have often come under attack in the United States as being a denial of equal opportunity ; in Canada, the Charter of Rights and Freedoms makes such programs legal by setting out that the equality provision in s. 15

does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

Where it is taken that there is a disadvantaged group, then a reverse discrimination not only in substance, but even in procedure as set out in the OHRC is not subject to challenge.There is no doubt that affirmative action is useful to help speed the correction of an historical denial of opportunity. It is unlikely that Jimmy Fallon, or even the Guardian hotel have as their goal the amelioration of historical disadvantages.  

The other reason for women’s only clubs and programs is safety.  As the lines from the Robbie Burns poem above suggest,  where the sexes are mixed, safety must be considered. The Georgian Court Hotel cites security as one of the reasons it provides women’s only floors. In the Brampton Youth Hockey case discussed last week, safety is mentioned often in the case as one of the major concerns with the policy. The same is true in the Blue Heron Casino case also discussed last week.  In those cases the organizations, though having to provide equal opportunity for women still ran afoul of the law because protection of safety wasn’t enough.  For the Hotel, the question will arise about men not being able to work on the women’s floor.  How differently will such challenges be treated, than that in the decision of the Blue Heron Casino where a woman was being discriminated against because she wasn’t given the position that involved cleaning the men’s washroom? 

At a Robbie Burns dinner this year I heard a woman make an impassioned argument that Robbie Burns wasn’t a womanizer, but rather a man who loved women.  And as Burns pointed out more than 200 years ago:

There was, indeed, in far less polish'd days,
A time, when rough rude man had naughty ways,
Would swagger, swear, get drunk, kick up a riot,
Nay even thus invade a Lady's quiet.

Now, thank our stars! those Gothic times are fled;
Now, well-bred men-and you are all well-bred-
Most justly think (and we are much the gainers)
Such conduct neither spirit, wit, nor manners.

Or,  as the old Virginia Slims cigarette ad states:  You’ve come a long way baby.

Boys NIght Out Part II

No Girls Allowed. Last week I wrote about a boys night out with my colleagues at the Centre for Human Resources. This boys’ night out was arranged by one professor who invited male colleagues out for beer, wings and bonding. Several of our female colleagues teasingly suggested that they would crash the get together. At our institution it is unlikely that any of the female faculty would think that this night out was a gathering of the power elite from which they were excluded. Our department has a male chair now for the first time in 10 or 15 years that I can recall. Nevertheless, the issue of women being excluded from the social aspect of the corporate world and therefore denied access to some of the very real opportunities for advancement is still present.

One of the big legal stories in Toronto in the last few years in this area is that of Diane LaCalamita, an intellectual property lawyer, who is suing her former firm, McCarthy’s for $12 million for discrimination. The statement of Claim filed by LaCalamita does not refer to the boys club, speaking more specifically about a culture of discrimination and denials of partnership opportunities. LaCalamita’s picture was on the cover of several magazines and her notoriety has become such that she has apparently decided to write the British Bar exams because she says she will never work in this town again. Is the “deadly war between the sexes” (as Nietzsche called it) still waging?

McCarthy’s own report on equality “found that while many lawyers believed the firm environment was characterized by great people and great work, a majority of women felt marginalized by subtle stereotypes, that they perceived “male” and “female” types of work, and that they felt excluded by “boys’ clubs.”

In the lawyer centered, Precedent magazine, there was a discussion of women leaving the profession. Although the law schools now graduate more women than men, women leave the profession at twice the rate of men. One of the reasons cited is that it is still viewed as an old boys’ world. Men at the top control the best work and make access to women very difficult.

Keeping women out of the boys’ club was front and centre back in 2002 when the men’s only rules of the Augusta National Golf club was challenged by Martha Burk, chair of the National Council of Women’s Associations. According to Burk, "The most powerful men in the United States are (at the club), doing business, finalizing contracts. Women are completely excluded from these transactions."

Augusta hasn’t changed and even last year, its “boys’ club” rule was in the media after a reporter was barred from the locker room. “Tara Sullivan, a reporter for The Bergen Record in New Jersey, was unable to join her fellow writers in the locker room for interviews after the final round of the 2011 Masters had concluded, all because of her gender.” Similarly, in September 2010, the New York Jets, although allowing reporter Inez Sainz into the dressing room to interview quarterback Mark Sanchez, had to apologize for the many sexist comments made by Jets’ personnel to Sainz. The Human Rights argument is that Sainz is unable to do her job as a reporter because she is being discriminated against and being sexually harassed in the workplace.

There are, of course, public policy reasons for keeping men and women separated in washrooms and locker rooms. The Ontario Human Rights Code provides in section 20

(1) The right under section 1 to equal treatment with respect to services and facilities without discrimination because of sex is not infringed where the use of the services or facilities is restricted to persons of the same sex on the ground of public decency

Though not specifically argued, the public decency defence is at the heart of a recent Human Rights Tribunal decision involving girls playing hockey. In Demars v Brampton Junior Hockey, Shaunna and Robyn Demars were barred, by rule from changing with the boys on the team once they hit the age of 12. The Association has a rule that requires that girls be given at least 10 minutes pre and post game time to be with the team. The rule takes into account that at an age where the players will be more aware of sexuality, precautions must be taken. There must be adult supervision; boys are required to wear boxer shorts and t-shirts and there must be separate time for changing and then team time. The girls often did not get this team time and when they were there were often subjected to derogatory comments. The girls often weren’t told where they could change and would have to lug their hockey bags around looking for the arena manager. And then they often had to change in substandard rooms, offices, janitors rooms etc. The tribunal found that discrimination occurred and awarded a total of $20,000 in damages.

The public decency argument was made in the employment context in Sequin v. Blue Heron. The casino which operated 24 hours a day had a policy that only male housekeeping staff could clean the mens’ washrooms and only female staff could clean the female washrooms. Two part time washroom attendants were hired, one male, one female. When a full time position became available, it was given to the male without competition because one of the duties of the full time attendant was to clean the men’s washroom. In fact, the Casino had housekeeping teams made up of two men and two women. It was a male that left one of the teams and the Casino sought to replace that position. The Casino did make the public policy argument as well as the BFOR argument. The Tribunal held that the BFOR argument failed on the Meiorin test because it would have been possible to accommodate Ms. Sequin. The Casino could have shifted men around from the other team to assist with the washroom cleaning duties, it could have hired another part time male attendant. Because step 3 of the Meiorin test (see last week’s column) failed, the standard was struck down and Ms. Sequin was awarded damages – which eventually after appeal and a new hearing on damages amounted to $6426 plus interest.

Whether it’s public decency, bona fide occupational requirements or just a group of guys getting together for beer and wings, the exclusion of women will almost always raise questions and create tension. There is a long history of women dressing as men to get to do the things men are doing. Looking at this in an interesting context, Willow Dawson and Susan Hughes have launched a graphic novel in which they spin historical yarns about women that dressed as men for fortune, fame and love. The title: No Girls Allowed!

Boys' Night Out

Boys Night Out Part 1

A few weeks back one of my colleagues at the Centre For Human Resource Management arranged a “boys night out” and several venues were put forth as possibilities. A place was chosen that offered a great special on ribs – a full rack, with fries for $9.99. Arriving late I had no time to consider the full menu, but the server was prompt and I ordered the special. Shortly thereafter she returned and asked me if I would like a beverage. I indicated I would and it wasn’t long before she came by with my beer, and then again returned with my rack. Over the course of the evening, I couldn’t help but notice that there seemed to be something different about my server each time she returned to the table. In fact there was – she was four different people. This I discerned mostly by looking at the name tags. It’s not just that they all wore the same outfit; they actually looked remarkably similar.

Having a corporate look, or image, is not new. The Disney Corporation, for example, is quite clear in its requirements that employees have “the Disney Look”. In the restaurant trade it may be the tux of a high end steak house, or the polyesters and hats of fast food franchises; but, uniforms are common place. The Hooter’s (the venue of our outing) uniform is described at http://www.hooters.to/torontodowntown/employment.php It would appear that the uniform and the “Hooters look” is a major component of the corporate image. Indeed, on the American site this is made clear:

The "nearly world famous" Hooters Girls are the cornerstone of the Hooters concept, and as part of their job, these all-American cheerleaders make promotional and charitable appearances in their respective communities. Hooters hires women who best fit the image of a Hooters Girl to work in this capacity. The chain hires both males and females to work in management and host, staff, service bar, and kitchen positions. The Hooters Girl uniform consists of orange shorts and a white tank top. Pantyhose and bras are required.

Several questions arise, the first, one that my students ask all the time, is whether the company can hire on the basis of looks. The short answer is yes. The concept of lookism, discrimination on the basis of physical attractiveness, is not something that has received much judicial attention in Canada, nor likely in any other jurisdiction. Though, a recent book by Stanford professor, Deborah Rhode, called The Beauty Bias, suggests that it should be the next rights issue to be tackled. Just this past September a lawsuit was filed in the U.S. by Shirley Ivey who alleges that her boss didn’t promote her at the Department of Consumer and Regulatory Affairs in Washington because she wasn’t pretty enough. At the other end of the spectrum, Citibank employee Debrahlee Lorenzana apparently sued on the basis that she was fired for being too attractive. There is no doubt that choosing one person on the basis of his or her looks over another is discrimination; the question is whether it is illegal discrimination-- that is discrimination based on one of the prohibited grounds in the Human Rights Code. For example, if the restaurant hired only blonde haired, blue eyed servers, then they would likely be discriminating on the basis of race, ancestry or place of origin. Though the web page linked above does not appear to show any racial diversity, there was, I discovered on further investigation, such diversity at the location chosen by my colleague.

In this regard, clothing retailer Abercrombie and Fitch recently settled a class action law suit for in excess of $40 million on the basis that its look based hiring policy did discriminate on the basis of race.

Discrimination on the basis of religion may also be a possibility in that the uniform would not be acceptable as appropriate dress to serious adherents of a number of different religious groups. Again Abercrombie has recently been named as a defendant in a lawsuit where it allegedly terminated a Muslim employee for refusing to remove her hijab.

The Hooters.to employment web page should also be viewed in light of the requirements of s.23 of the Human Rights Code which prohibits advertisements or invitations to apply for employment which directly or indirectly classify qualifications on a prohibited ground. A look at the page shows a relatively homogenous group of females in the Hooters Girl outfit, indirectly thereby inviting similar looking females to apply for the job. However, the page states directly “There is no set requirement in order to be a nearly World Famous Hooters Girl!” But then goes on to state: “We look for the All-American (Canadian) Cheerleader / Surfer-Girl-Next-Door image to fill our restaurants. In other words...Very bubbly, outgoing personalities!”

More obvious, is the fact that the position is for Hooters Girls, not for servers and the application may well discriminate against males. In fact, Hooters, has apparently settled a gender discrimination law suit in the United States for $3.75 million. Hooters did argue that the position was not for a server but rather for a Hooters Girl, and as such one had to be female to fill the position. In this regard, Hooters states: “the settlement agreement acknowledged that "being female is reasonably necessary" to the performance of the Hooters Girl's job duties, forever preserving the integrity of the Hooters Girl concept.” This private settlement would not determine the issue in law, especially in Canada. The test for what is a bona fide occupational requirement in Canada is set out in the Meiorin case and requires a three step analysis once prima facie discrimination has been determined. Here prima facie discrimination is established in that they do not hire males to be Hooters Girls. The three steps are then, first that the requirement is rationally connected to the performance of the job. Secondly, the standard must be adopted in the good faith belief that it is necessary for the fulfillment of that work related purpose, and finally, it must be reasonably necessary for the fulfillment of the work related purpose and to show that it is reasonably necessary it must be shown that it would be impossible to accommodate someone without the qualification. The question really would be whether they could get past step one, that being female is rationally connected to the performance of the job.

The third possibility, here, is that choosing employees on the basis of sexual attractiveness might arguably be sexual harassment. There is some case law to suggest that placing someone on a sexual spectrum (i.e. attractive or not) is sexual harassment. The Human Rights Code does not expressly include sexual harassment at the hiring stage, but rather only once there is an employment relationship (compare s.5 to s.7(2)). Though, the seminal case, Janzen v. Platy did hold that sexual harassment is discrimination on the basis of sex. Thus it is arguable that not getting a job on the basis of looks, that is, sexual attractiveness is sexual harassment which is a form of sex discrimination and thus prohibited by s.5 of the Code. The problem with this is that harassment requires a course of conduct and that is unlikely to be met at the hiring stage.

In the Meiorin case, the Supreme Court made reference to the human rights “goal of transformation.” In this regard, systemic discrimination occurs partly because the system has and creates its own momentum. It’s unlikely that a male will want to apply for a position as a Hooters Girl, or that someone whose religion requires more conservative clothing will seek out employment at the Hooters organization. One look in the restaurant or at the website will cause people who do not match the image to self select out of those positions. But again, provided that the discrimination is based on attractiveness and not on one of the prohibited grounds, then likely, it is perfectly legal. As the Hooters site states: “Hooters Girls have the same right to use their natural female sex appeal to earn a living as do super models Cindy Crawford and Naomi Campbell.”