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:
- 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.
- Requiring employees of one gender to wear a uniform specific to that gender.
- 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.
- Permitting cisgender women but not transgender women who are residents at a drug treatment facility to wear wigs and high heels.
- 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.
FAQs
Until it does, employers can require bras. That's true even if it's not written down in their dress code (they'd likely argue it falls under general professional appearance). So you've got to decide how much you want to push the issue.
Can your employer force you to wear a bra? ›
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.
Is it illegal to fire someone for not wearing a bra? ›
Under Title VII of the Civil Rights Act of 1964, it is illegal for an employer to discriminate against any individual under the protected category of sex. “A dress code could require women to wear bras in theory, but only if it was equally expensive or burdensome for men to do so,” Scafidi said.
Are there any rules against going braless? ›
First things first: There are literally no rules, which is to say laws, that govern women's underwear. Instead, laws focus on body parts, and what can be shown and not shown.
Is it unprofessional to go braless at work? ›
However, it's also true that for many workplaces, displaying any kind of nipple or cleavage, however it's gendered, is considered inappropriate.
Is wearing a bra mandatory? ›
Shapiro, there are no known health risks associated with not wearing a bra. “There is no 'wrong' answer,” Dr. Shapiro says. “If you find that you're the kind of person who's comfortable and confident without a bra, that's fine.”
What are illegal things the employer Cannot do? ›
An employer may not base hiring decisions on stereotypes and assumptions about a person's race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), national origin, age (40 or older), disability or genetic information.
Can an employer tell you what to wear? ›
Yes. In general, employers are allowed to regulate their employees' appearance, as long as they do not end up discriminating against certain employees. It is very common, for example, for an employer to require his/her employees to wear a uniform so that all employees appear uniform.
Should a man with breasts wear a bra? ›
Some men who have large breasts as a result of obesity or gynecomastia may choose to wear a brassiere to provide support for their breasts and to flatten their appearance.
Do teachers have to wear a bra? ›
There is no universal rule that requires teachers or anyone else to wear bras. It is generally considered a matter of personal preference and comfort. Some people find bras to be more comfortable or supportive, while others may prefer to go without. It's important to wear what makes you feel comfortable and confident.
Rather than a black-and-white answer, not wearing a bra has its pros and cons, especially depending on the size of your chest. With larger breasts, not having the support of a bra could lead to more back pain and sagging. But with a smaller chest, it's likely that not wearing a bra will cause any drastic changes.
Is there an alternative to wearing a bra? ›
There are certainly non-bra options that give your breasts coverage and shape, such as camisoles, bandeau/strapless, bodysuits, bralettes and of course, braless.
What is it called when you go braless? ›
The word braless was first used circa 1965. Other terms for going braless include breast freedom, top freedom, and bra freedom. Activists advocating going braless have referred to protests as a "bra-cott".
Why does going braless feel so good? ›
We all know that feeling that we (and our skin) can breathe after we #freethenipple! Going braless benefits our skin by allowing moisture to naturally dissipate and reducing potential for clogged pores. Other benefits of wearing no bra can also include improved circulation and reduced neck and back tension.
Can my employer tell me what to wear to work? ›
Employers regulate clothing, piercings, tattoos, makeup, nails, hair, and more. For the most part these dress codes are legal as long as they are not discriminatory. For example, men and women can have different dress codes if the dress codes do not put an unfair burden on one gender.
Can my work force me to wear a uniform? ›
Generally, employers are free to require employees to dress in a particular way, including wearing a uniform, as long as those requirements aren't discriminatory or illegal.
Can you be fired for what you wear to work? ›
You can be fired for a dress code violation as long as you were not fired for something that discriminated against you for your religion, gender, or another reason.
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.