Female employees bring new discrimination claims over bras in the workplace

Waitress in coffee shop
The question of whether an employer can compel female employees to wear a brassiere to work has been opened once more.

The question of whether an employer can compel female employees to wear a brassiere to work has been opened once more. In British Columbia, an employee of the Osoyoos Golf Club is filing a Human Rights complaint after being fired for refusing to wear a bra on the job.

Last year, Genevieve Losielle, working at an East Side Mario’s in Sudbury, wouldn’t wear a bra when asked to do so. The restaurant manager told Loiselle that two customers and a co-worker had complained about her going braless. Loiselle responded that that if heavy-set male employees, many with bigger breasts than her, didn’t have to wear a bra, why should she?

The manager still insisted that Loiselle wear a bra until the story went viral nationally, and the restaurant owner backed down in the face of the bad publicity.

Does an employer have the right to compel women to wear a bra on the job?

A ‘bona fide occupational requirement’ or workplace discrimination?

Under the Human Rights Code, discrimination happens if a person is adversely treated based on a ground listed in the Code. Sex is one of these grounds.

A complainant can prove discrimination if they show any negative treatment they are receiving falls under one of the grounds in the Code. An employer is discriminating if it forces a female server to wear a revealing top while letting a male server wear a t-shirt.

An employer can show they are not discriminating only if its policy is based on a bona fide occupational requirement (BFOR). A BFOR occurs if a certain skill or characteristic is needed to do a job. For example, an airplane pilot must be able to see, so a policy saying that blind people cannot become pilots would discriminate against blind people who wanted to become pilots. But the discrimination is permissible as it’s a BFOR.

Mandatory bras – is it workplace discrimination?

In almost all situations, yes.

An employer may only require employees to wear specific clothing – including underwear – if

  • there is a non-discriminatory reason they must do so and
  • the clothing requirement doesn’t demean anyone

It is not discrimination to insist that construction workers wear helmets, as this is a necessary safety precaution and a BFOR. This holds true even for employees whose religious beliefs require them to wear a head covering.

It is not likely that any clothing policy requiring women to wear bras could be exempted from discrimination as a BFOR. Asking women to wear revealing clothing or a bra is not likely a health or safety issue, so such requirements almost certainly discriminate against female employees.

The only conceivable situation which might create a BFOR for such a dress policy would likely be if employees shared clothing. If different employees wore the same protective clothing, or the same suit to dress up as a mascot, an employer could probably insist that employees wear proper underwear for sanitary reasons. But the policy would have to apply to both females and males so that it would not be discriminatory.

Dress codes may reduce discrimination claims

Employees, especially female employees, will continue to claim discrimination unless employers can show that their company’s dress code is not discriminatory.

Employers can do their best to reduce accusations of discrimination by preparing a clear, written dress code. They should explain why the code makes requirements of employees, and how these dress requirements are necessary for doing the job and for employee safety. 
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