Can a Bar Give Preference to Women in Server Positions?

Here’s a fun question that I often discuss in my employment law class.  In a lot of popular bars in Toronto you will find that the floor servers–wait staff, hosts, bartenders–are women.  Men, meanwhile, almost always predominate in the back kitchen areas.  The floor staff earn the big bucks, because they take the lion’s share of the tips.  So there can definitely be a financial benefit to working on the floor.  Now, what if the bar has a policy of preferring women floor staff over male floor staff, perhaps on the theory that having ‘pretty women’ servers will add to the hipness of the bar’s image and attract more paying customers?   Would that policy amount to sex discrimination under human rights laws?
A recent decision of the Ontario Human Rights Tribunal touched on this question, though doesn’t provide a clear answer.  The case is called Mason v. Clearlane Investments (aka ‘The Quail and Firkin). Mason was a male ‘busser’.  The Tribunal accepted the following as facts:

[5]         For the most part, men and women held different jobs for the respondent. Men worked as kitchen staff and bussers. Women held the jobs of table servers and bartenders. The gender make-up of these positions is confirmed in a staff summary dated November 30, 2010, prepared by the respondent.
[6]         Not surprisingly, bartenders and table servers earned more income than bussers because they received a higher tip percentage. This fact is not disputed by the respondent.

Mason argued that this practice of employing women table servers and male bussers and cooks discriminated against him on the basis of sex. Should he win?
The Decision
The Tribunal decided to exercise its power under Rule 19A.1 of the Tribunal’s Rules of Procedure, which says this:

19A.1  The Tribunal may hold a summary hearing, on its own initiative or at the request of a party, on the question of whether an Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.

Therefore, the question in this case was whether the complaint raises allegations which, if proven, give the complaint  a ‘reasonable prospect’ of success.   Mason would need to prove a violation of Section 5 of the Code, which prohibits discrimination in employment on the basis of sex.  The facts showed that women are servers and men are bussers, so there does appear to be a distinction based on sex. However, Mason nevertheless loses, because he had never applied for or requested a server position, and therefore was never denied the position.  Since he was never denied a server position, he could not now claim that he was disadvantaged due to his sex:

Tribunal:       The applicant has failed to establish that he was disadvantaged by the practice of placing women in the positions of bartender and table server because he never expressed interest in these positions and therefore was not denied these positions because of his gender. For this reason, the Application is dismissed.

Questions for Discussion
Now, employment law students, ask yourself this:  What if he had asked to be a server, and the employer had denied the request by saying that they prefer to have women working out on the floor?  Would the employer be violating the Code then?
If that would constitute sex discrimination, do you think that the employer could nevertheless defend itself by demonstrating that being a women is a bona fide occupational requirement of being a bar server?  Read Section 24(1)(b), where that defense is found.  What argument would the employer have to make to fit its ‘women server’ policy within that exception?  Would it succeed?