Can employers regulate employees' underwear?
By Stuart Rudner and Nadia Zaman
You might have seen this in the news recently: Geneviève Loiselle, a female server at an East Side Mario’s restaurant in Timmins, Ont., alleged that her employer ordered her to wear a bra at work as part of the dress code. Loiselle noted that “It was a really sexist thing to do” and stated, “Some men have larger breasts than I do. You would never impose [a bra] on a male so why would you impose that on a female?”
In particular, Loiselle was upset with the way this was handled, and alleged that a female manager took her aside and, looking right at her breasts, said, “Well, Gen, I can clearly see that you’re not wearing a bra and that you have nipple piercings.”
After this story “went viral.” her employer sought to minimize the damage and informed her that she did not, after all, have to wear a bra at work.
So the question arises: Can an employer demand that female employees wear a bra at work? The simple answer is that unless the employer can show that this is a bona fide occupational requirement, such a requirement would be discriminatory.
Earlier this year, the media was focused on sexualized workplace attire and, in particular, the fact that some restaurants mandated that female employees wear short skirts, low-cut tops or high heels, without any corresponding requirement of their male employees. This was a fairly common practice, with many restaurants known more for the clothing (or lack thereof) on their wait staff than the food on their menus.
Sadly, these concerns are nothing new — human rights decisions relating to discriminatory dress codes can be found from decades ago. In a 2013 decision by the Human Rights Tribunal of Ontario, McKenna v Local Heroes Stittsville, the sports bar had cut the server’s shifts after she raised concerns about wearing a new form-fitting uniform due to her visible pregnancy. The tribunal held that this was discriminatory — as management sought to re-brand by emphasizing the sexual attractiveness of the staff and saw the applicant’s visible pregnancy as inconsistent with its re-branding efforts — and ordered the respondents to pay her $17,000 for injury to her dignity and almost $3,000 in lost wages.
On International Women’s Day (March 8) of this year, the Ontario Human Rights Commission released Not on the Menu: Inquiry report on sexual and gender-based dress codes in Ontario’s restaurants. According to the report, sexualized and gendered dress codes will no longer be tolerated in Ontario’s restaurants. Employers expose themselves to significant liability if they have discriminatory dress codes or if they fail to fulfill their duty to accommodate.
The law of discrimination
While employers have the right to implement and enforce reasonable rules in the workplace, a dress code cannot violate human rights legislation. These statutes prohibit discrimination based on various protected grounds including sex and sexual orientation. No one can contract out of human rights legislation.
Discrimination is defined as adverse treatment of a person on the basis of a protected ground (such as their sex). In order to prove discrimination, an employee must show that there is a connection between the negative treatment and one of the protected grounds (for example, being required to wear high heels because you are a female).
Once an employee establishes prima facie discriminatory conduct, the onus shifts to the employer to justify the conduct based on an exemption available under the relevant legislation. For instance, an employer may be able to justify a distinction based on a protected ground by showing that it is a bona fide occupational requirement (BFOR), i.e. a skill or characteristic essential to a job, without which the job cannot be performed.
In order to establish a BFOR, the employer must show that:
- the standard was rationally connected to job performance
- the standard was adopted in an honest and good faith belief that it was necessary to the fulfillment of that work related purpose
- the standard is reasonably necessary to the accomplishment of that legitimate purpose.
An example of this would be a requirement that construction workers wear helmets, as it is necessary for them to be able to perform their job safely, even if it interferes with their religious obligation to wear a head covering.
Dictating female underwear discriminatory
Is requiring that female employees wear a bra at work discriminatory? On its face, such a requirement is discriminatory given that there is a connection between the negative treatment (requirement to wear a bra) and one of the protected grounds (sex).
In fact, the Ontario Human Rights Commission provides examples of gendered and/or sexualized dress code requirements or expectations that may violate the Code, which includes “Telling women staff what underwear they should or can’t wear: Such as being told not to wear a bra or to wear thong underwear”.
Can an employer nevertheless justify such a requirement by showing that it is a BFOR?
While it would depend on the particular facts of a given case, in our view, this would be an uphill battle. It is hard to imagine that this could be demonstrated to be a health or safety issue. An employer might argue it is a “legitimate business interest” to ensure a “professional image” or that the employer is acceding to customer requests.
However, an employer would likely be unable to rely upon either of these arguments to justify the requirement to wear a bra, or otherwise dictate employees’ underwear. Even if an employer is able to show that the standard was adopted in an honest and good faith belief that it was necessary to the fulfillment of a work-related purpose, how would the employer show that the standard is “rationally connected to job performance” and “reasonably necessary” to accomplish the work-related purpose? It would be extremely difficult to establish all three prongs to satisfy the BFOR test — the standard is quite high.
Designing a dress code
Dress codes should be written and speak to what is permitted and expected when it comes to attire in the workplace. Like any workplace policy, a dress code must be clear, communicated to all employees, consistently applied and enforced, and reasonable. The commission has developed a checklist to help organizations make their dress codes and uniform policies consistent with the code.
Policies should include the following:
- ●what is permitted
- ●examples of what is not permitted (any restriction should be connected to a real business, health or safety requirement)
- ●procedures for requesting accommodation or exceptions for appropriate reasons, and
- ●disciplinary consequences for non-compliance.
Employers would be well-advised to incorporate such policies into employment contracts, such that a breach of the policy would constitute a breach of the employment agreement. In addition, employers should train all employees on such policies, monitor to ensure compliance, discipline offenders, and update the policies as needed.
Companies should be aware, however, that the more prescriptive their requirements, the more likely they are to create barriers for staff. There is a difference between what an employee chooses to wear to work, and what an employer directly, or indirectly, tells an employee to wear. An employer should be prepared to prove that any sex-based differences in the dress code are legitimately linked to the job requirements. Where this cannot be shown, these dress codes will be discriminatory.
Loiselle alleged that her manager told her she was required to wear a bra under the dress code, but her manager could not point to anything in the policy stating this requirement. One of the takeaways for employers is the importance of having written policies in place and knowing what they say. It is also important to disseminate those policies so all employees are aware of them.
Employees may be affected by uniform requirements in different ways, as they may have different code-related needs. Employers can minimize the risk of liability by having clear, comprehensive and inclusive policies, as well as processes to address complaints about dress codes, sexual harassment and other discrimination.
Nadia Zaman is an employment and human rights lawyer at Rudner Law in Toronto.