Usually when we talk about damages for wrongful dismissal, we look at the number of months, we try to calculate what a month is worth and we take into account salary, bonuses, commission, benefits, car allowance, pension, etc. And when we negotiate a settlement, we might throw in a token amount for the cost of finding new work, but that's usually an afterthought.
Despite a decades long fight for gender equality, there are still countless instances in everyday society where those who identify as women are still left vying for equal treatment, or at least an equal playing field. In early 2018, the Province of Ontario passed legislation under the Occupational Health and Safety Act that prohibits the requirement to wear high heels to work, which while stated to be a safety measure, echoed the Ontario Human Rights Commission’s recent reports about gender-based dress codes as discriminatory.
As recently as last Fall, Rudner Law’s own Nadia Zaman garnered significant media attention examining the issue even further, providing comment on the case of a B.C. worker who was fighting her employer’s requirement that she wear a bra during her restaurant shifts. The employee was told that her workplace is “a polite restaurant and no one needs to see that” – a comment which, needless to say, would never be made to a male employee. Again, despite efforts, female bodies continue to be overtly sexualized in the workplace.
So what happens when a photo of an employee’s shirtless torso is unwillingly circulated online?
Is the answer any different because that employee happens to be a woman?
A 25 year old middle school teacher in New York state named Lauren Miranda was recently dismissed after a topless selfie made its way to her school principal. The photograph was originally taken two years prior and was only intended for her then-boyfriend, who was a fellow teacher in the district. Prior to being called to the Principal’s office, Ms. Miranda was informed by a colleague that the photo had been obtained by a teenage student.
When questioned by the Principal and school administrators (mostly male), Ms. Miranda was accused of disseminating the photograph to students – a claim that she denies. According to her lawyer, her superiors “attempted really hard to humiliate her, berate her, and get her to resign,” which she refused to do. Ms. Miranda was suspended with pay and subsequently terminated, told that she is no longer a role model for her students. Her disciplinary paperwork stated that she failed to take “adequate precautionary measures” to prevent the photo from becoming available to students. She is currently suing her school district for $3 million USD for gender discrimination.
Her full claim has not been filed yet (her lawyer has filed a notice and is waiting for the district to reply), but Ms. Miranda’s argument is inherently a simple one. If a male teacher is seen shirtless, it is viewed as a non-issue, and circulating a photograph of him may lead to little more than a few guffaws. Why, then, should a female teacher be punished so severely because she has similarly exposed her chest?
While this specific case is American, and teachers are most often unionized employees with their own unique workplace rules, suppose this were a hypothetical non-unionized employee in Ontario. Would it be appropriate to terminate their employment under similar circumstances? Or would that termination be a violation of the employee’s right to be free from discrimination on the basis of sex, gender identity and/or gender expression?
The answer is not exactly clear. Since 1991, Ontario courts have ruled that it is permissible for women to go topless in public, as bare breasts were not considered by the Court to be obscene, and thus displaying them freely in a public forum is not an indecent act.
But what about a selfie that, while perhaps intended to be private, circulates around the workplace? Employers are free to create workplace policies that can restrict or prohibit the transmission of sensitive material, such as nude photographs, either on their own servers, or between co-workers even if sent in off hours. These policies can include disciplinary measures up to and including dismissal, however it is exceedingly difficult for employers to justify terminating an employee for cause save for the most extreme misdeeds.
Yet this is all predicated on the notion that a topless female body is considered ‘nude,’ whereas a topless male body is de rigueur. Fit men frequently pose shirtless for workplace calendars and photo shoot fundraisers without a second thought as to whether or not the images are considered obscene and worthy of punishment. For a policy to be applied equally in the workplace, do these images now need to be subject to censure as well?
It is too early to tell if Ms. Miranda’s claim will be successful, and there are truly no straightforward answers to these questions. Yet the questions are worth asking, especially as our collective understanding of gender continues to evolve.
Employers cannot discriminate based on sex or gender, and so they should be implementing policies that are balanced, and are in line with current best practices. Contact us today to review your workplace policies and help ensure that you are treating all employees fairly.
Despite the controversial circumstances here, employees can rest assured that discrimination solely based on ones’ sex or gender is never okay. Contact us today if you feel that you have been discriminated against at work so that we may help assess your case and guide you through your legal options.