The story describes a human rights complaint filed by a London law student with a prosthetic arm. She was hired by A&F, but then ordered to the stockroom where customers would not see her after the company’s “Look” police (the “Visual Team”) complained that she violated the “Look Policy” by wearing a shirt that covered the joint between her arm and the prosthetic. Apparently, wearing a long sleeve shirt in the summer violates the company’s dress code.
If this had happened in Ontario, how would the Human Rights Code deal with? The first issue is whether the employee was unlawfully discriminated against. Do you think a dress code requiring short-sleeve or no sleeve (or no top!) discriminates against a person who has a prosthetic arm? We are dealing here with indirect discrimination, or what the Code calls “constructive discrimination”. Section 11 of the Code provides as follows:
11. (1) A right of a person under Part I is infringed where a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member, except where,
(a) the requirement, qualification or factor is reasonable and bona fide in the circumstances; …
Do you think this catches the situation of the woman with the prosthetic arm? I’d think it is obvious that the fact that she has a prosthetic arm has led to her exclusion or negative treatment. But assuming that the employer would have allowed her to work out front with short sleeves, the employer might argue that it is not her disability that led to her exclusion, but her unwillingness to wear short sleeves as required by the dress code. In other words, her disability doesn’t prevent her from complying with the dress code–the picture of her accompanying the news story shows her in short-sleeves. Rather, it is her own choice to hide her arm for personal reasons. If an employee doesn’t want to wear short sleeves because he or she is embarrassed by, say, too much arm flab, it would not be discrimination for an employer to tell the employee to wear the uniform or quit. Employee insecurities about their appearance do not give rise to discrimination.
Would you buy that argument? Or do you think that there is a big difference between the prosthetic arm example and the arm flab example? Should an employer be able to insist on a uniform that a disabled worker finds embarrassing or degrading because of how it emphasizes the disability?
If the dress code does discriminate against the employee, the employer could argue in defense that the dress code is a bona fide and reasonable because image (read: good-looking employees wearing little clothing) is crucial to A&F’s business model, and that it is not possible to accommodate the employee without suffering undue hardship. This defense appears in Section 11(2). I’d think this argument would be a stinker in this case. Even if a tribunal accepted that having young, slim, ‘pretty’ employees was an acceptable hiring practice (big IF), it’s hard to imagine that allowing this employee to wear a longer sleeve would cause A&F undue hardship.
What do you think about this case?