Workplace Attire: Can your employer force you to wear a bra?

As millions of workers continue to work from home due to the COVID-19 pandemic, some employers are welcoming their staff back to retain some sense of normalcy.  Part of that normalcy is re-enforcing workplace dress codes that may have been relaxed while employees worked from home.  Generally, employers are legally allowed to regulate their employees’ work attire, i.e., uniforms.  However, an employer’s dress code cannot discriminate against certain employees.

An employer may require you to wear avoid wearing casual clothing, such as leggings or shorts, but only if the dress code can be applied equally.  According to Title VII of the Civil Rights Act of 1964, it is illegal for any employer to discriminate against their employees based on their race, color, religion, sex, or national origin.  In theory, if an employer requires their employees to wear a bra, said employer would have to require all employees, regardless of gender to wear a bra.  Furthermore, under the New York City Human Rights Law, employers are barred from imposing specific dress code requirements for specific genders.  Therefore, employers within the limits of New York City cannot force their female employees to wear a bra.

“Under the NYCHRL, employers and covered entities may not require dress codes or uniforms, or apply grooming or appearance standards, that impose different requirements for people based on gender.  The fact that the grooming standard or dress code differentiates based on gender is sufficient for it to be considered discriminatory, even if perceived by some as harmless.  Holding people to different grooming or uniform standards based on gender serves no legitimate non-discriminatory purpose and reinforces a culture of gender stereotypes and cultural norms based on gender expression and identity.” N.Y.C. Admin. Code § 8-130(a)

Examples of violations:

1. Maintaining grooming and appearance standards that apply differently to men or women or which have gender-based distinctions. For example, requiring different uniforms for men and women, or requiring that female bartenders wear makeup.
2. Requiring employees of one gender to wear a uniform specific to that gender.
3. Permitting only women to wear jewelry or requiring only men to have short hair. By contrast, requiring all servers, to always have long hair tied back in a ponytail or away from their face is not a violation unless it is applied unequally based on gender.
4. Permitting cisgender women but not transgender women who are residents at a drug treatment facility to wear wigs and high heels.
5. e. Requiring all men to wear ties to dine at a restaurant.

In comparison, federal courts have established a heightened standard to determine discrimination regarding grooming and dressing standards.  Under Federal Law, employers can have differing standards as for men and women if these standards do not impose an undue burden. Jespersen v. Harrah’s Operating Co., Inc., 392 F.3d 1076 (9th Cir. 2004) aff’d on reh’g, 444 F.3d 1104 (9th Cir. 2006) (granting summary judgment for defendant because plaintiff failed to produce evidence that requiring female bartenders to wear makeup placed greater burden on women than on men).

Although employers may not require their female employees to wear bras, they can still modify their dress codes more eloquently in effort not to target their female employees.  Susan Scafidi, Director of the Fashion Law Institute at Fordham University, suggests, “A more modern dress code would probably say something like, ‘You have to cover the area between the collarbones and the knees, or the upper torso below the collarbones, and nipples may not be visible.’ Technically, that would apply to both men and women.”

The main takeaway that employers must note is an employer can modify their workplace dress code to achieve their desired goal, without targeting their employee or singling them out.

If you believe your employer has discriminated against you because of your gender, contact Borrelli & Associates, P.L.L.C. to schedule a free consultation through one of our websites, www.employmentlawyernewyork.com, www.516abogado.com, or any of our phone numbers: (516) 248-5550, (516) ABOGADO, or (212) 679-5000.