East Side Mario’s Bra Brouhaha
The decision by an East Side Mario’s manager to demand that a waitress wear a bra has raised questions about an employee’s rights in the workplace.
22-year-old Genevieve Loiselle told CBC News that, on September 2nd, her manager at the Timmins East Side Mario’s pulled her aside before her shift started. Loiselle was told that she must wear a bra, and that the undergarment was a part of her work uniform. During the discussion about the bra, the manager allegedly pointed out that no only was the server not wearing one, but that her nipple piercings were quite visible.
“It’s a violation of my rights as a person to dictate my undergarments. It was a really sexist thing to do,” Loiselle told CBC News.
The East Side Mario’s waitress, who started work in May, argued that she prefers to go braless, and that a woman has the right to choose what she wears underneath her uniform.
Loiselle suggested to her manager that the same dress code requirement would not apply to a male server.
“People don’t look at women’s bodies the same way they look at men’s bodies,” was the manager’s alleged reply. She told Loiselle that two customers and a co-worker had lodged complaints about the lack of a bra.
While the manager told Loiselle that the bra was covered in restaurant’s dress code, the server was not able to locate said policy.
The manager in question has denied that the initial conversation took place, and that she simply asked why Loiselle preferred not to wear one. Cara International, which owns East Side Mario’s, told CBC News that they are investigating the incident.
From East Side Mario’s to Bird and Beer
A dispute similar to Loiselle’s East Side Mario’s experience recently made the news in the U.K.
22-year-old Kate Hannah alleged on Facebook that she was fired from a bar because she refused to wear a bra. She claimed that her manager’s brother made inappropriate comments during a shift at the Bird and Beer in East Yorkshire.
However, a Bird and Beer spokesperson announced that “no employees have been dismissed from the company regarding these allegations.”
What the Law Says
Incidents involving dress code usually revolve around employers asking female staff to wear “sexy clothing” (short skirts, revealing tops, etc.).
Our Human Rights Tribunal (whether it is in Ontario or British Columbia) has clearly decided that asking female staff to wear skimpy outfits reinforces gender stereotypes, and is therefore a human rights violation. We can refer to Mottu v. MacLeod and Barfly Nightclub, [BCHRT 76, 2004] , where the B.C Human Rights Tribunal determined that the club’s dress code was not applied fairly between male and female employees. While male servers were simply asked to wear Hawaiian themed clothing, female servers were required to don a bikini-top. The Tribunal deemed the policy to be discriminatory on the basis of sex.
Any gender-specific dress code runs the risk of being deemed illegal, and a human rights violation, unless these two factors are present:
- the dress code isn’t embarrassing or demeaning to the employee, and
- the dress code requirement is a bona fide occupational requirement. There must be a rational, non-discriminatory reason as to why the workplace requires a certain aspect of the dress code.
In the case of Loiselle and her bra (or lack thereof) at East Side Mario’s, is her clothing choice likely to upset customers? It would be very difficult to establish the fact that her clothing choice is causing a significant disruption. Unless there is a really good reason, beyond one or two alleged complaints, why the employee must wear a bra, this could potentially be a human rights violation.
For more on bona fide occupational requirements, watch our two-minute interview with Toronto’s CityNews on the subject of high heels in the workplace.
Lessons for Employees
Ensure that you have reviewed the Company’s dress code policy. Ask your employer for clarification on certain requirements if necessary.
Seek legal advice before making a formal complaint.
Lessons for Employers
Have a formal dress code policy in place. Make sure it has been either drafted or reviewed by your legal counsel to ensure that the policy does not breach the human rights code.
Generally attempt to not engage in gender stereotyping. Your best chance at avoiding complaints about your dress code is to ensure that said dress code does not stereotype based on gender.
Establish a Bona Fide Occupational Requirement. If a form of gender stereotyping is required in the way employees are to dress, you must establish how the dress code is necessary in the workplace.