The question
I have a front-facing customer service job and I was recently asked by my manager to wear a bra. There is nothing in my contract that says I am obligated to wear a bra, but my manager cited the dress code that says we must be presentable. She claims that not wearing a bra means that I’m in violation of the dress code. Is this true?
The FIRST ANSWER
Dina Mashayekhi, partner, Jewitt McLuckie & Associates LLP, Ottawa
Even if your contract or company dress code clearly states that you are obligated to wear a bra, this requirement could be found to be discriminatory. While employers are permitted to have dress codes, the codes must apply to everyone in the workplace equally and cannot compromise an employee’s dignity. Gender-specific rules, where women would be obliged to wear makeup or to dress provocatively, may be seen to violate human rights legislation, unless an employer can prove that the dress code requirement is a bona fide occupational requirement. An example would be a safety reason or one where the rule is necessary and truly connected to one’s ability to perform the job.
You mention that you are in a front-facing customer service role and that the dress code requires you to be “presentable.” While different industries may have different concepts of what being “presentable” entails, unless your employer can establish that without wearing a bra, you would not be able to safely and fully perform your job duties, then there’s a good chance the dress code would be found to be discriminatory. In most cases, it will be extremely difficult for an employer to justify and defend a gender-specific rule, especially one that regulates an employee’s undergarments.
If your manager repeatedly asks you to wear a bra, or if you suffer some form of discipline in the workplace because of your refusal, you may wish to consult an employment lawyer to review your options.
The second answer
Pamela Connolly, lawyer, West Coast Workplace Law, Vernon, B.C.
I can understand your confusion about this topic. While employers do have the right to require that employees meet expectations for how they present themselves at work, there are limits to those rights. Dress code policies must not be discriminatory or demeaning to employees.
Employees are protected from many types of workplace discrimination, including those related to their sex, by the applicable Human Rights Code/Act in their jurisdiction. It is arguable that by applying a dress code policy to target people with breasts and their use of undergarments, this is a type of sexual discrimination. Depending on the circumstances, some employers might be able to justify that type of policy on the basis that there are health or safety reasons for wearing a bra. In your situation, the issue appears to be purely aesthetic; the employer believes that breasts without bras are not presentable. Simply put, that is not enough to justify their policy and it would likely be found to be discriminatory. Braless breasts are not inherently indecent or unpresentable.
This experience may have confirmed that this workplace is not the place for you, so your next step could be resigning and/or filing a Human Rights Tribunal complaint, which can be a long road. However, if you otherwise value this job, I suggest bringing your concerns to management’s attention. Part of my legal practice involves helping employers understand their obligations to employees, including explaining their human rights obligations. In my experience, many of these situations can involve a misunderstanding or ignorance of these obligations, rather than an intention to violate human rights. I am hopeful that with some education, your employer will retract its request and take steps to rebuild the trust in your relationship.
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