Sunday, January 8, 2017

Breasts, part 2: Is it unlawful sex discrimination to require female employees to wear bras?

Following on the heels of my recent post about breastaurants, the recent decision in Baez v. Anne Fontaine USA, Inc., No. 14-cv-6621 (KBF) (S.D.N.Y. Jan. 5, 2017), gives me an excuse to delve more deeply into the intersection of EEO law and bosoms. In Baez, Judge Katherine Forrest concluded that Rochelly Baez, a regional manager for a clothing retailer, had presented sufficient evidence for a jurgy to find that she was unlawfully fired in retaliation for complaining about rumors that she had worn a revealing shirt and no bra in a meeting with the CEO, thereby showing him her breasts.

Under Title VII of the Civil Rights Act of 1964, an individual is only protected against retaliation for complaining about conduct that she reasonably believes violates the Act. In this case, Baez complained about rumors related to her failure to wear a bra, so let's consider to what extent Title VII is implicated if an employer requires its female employees to wear bras.

You might think that because only women wear bras, a dress code requiring bras inherently discriminates against women. But that reasoning is almost certainly mistaken. By analogy, consider employer policies prohibiting facial hair, which, like bra policies, affect only members of one sex. No-beard policies have been routinely challenged as discriminating on the basis of race -- because African American men are susceptible to pseudofolliculitis barbae (razor bumps) -- or religion -- because some religions require men to grow beards. I'm not aware, however, of any cases in which facial hair policies have been challenged as discriminating against men based on their sex.

Moreover, no-beard and "yes-bra" policies are both likely to be part of broader dress codes. Courts routinely uphold such dress codes even though they impose sex-specific requirements, because neither sex is treated worse when the dress codes are viewed as a whole. By contrast, a no-beard policy can result in the requisite material harm required for a Title VII claim if, for example, African American men are disproportionately exposed to a serious medical condition or an employee must violate his religious views.

Perhaps the best argument that a bra requirement discriminates against women is that it may be reasonably seen as an endorsement of stereotypical norms about female bodies and sexuality. If female employees in an office workplace are required to wear high heels, short skirts, and revealing tops, while men are required to wear business suits, it would be easy to see that women are treated worse than men because women are required to dress in a manner consistent with degrading sexual stereotypes. But it's much harder to make the case that merely requiring female employees to wear bras results in the kind of harm that is needed to establish a Title VII claim.

Somewhat counterintuitively, because a bra is designed specifically for female anatomy, a bra requirement is probably less likely to result in unlawful sex discrimination than another requirement, such as make-up, that is imposed only on women but could also be imposed on men. In Jespersen v. Harrah's Operating Co., 444 F.3d 1104 (9th Cir. 2004) (en banc), the Ninth Circuit rejected Darlene Jespersen's claim that she was unlawfully fired based on her sex when she refused to comply with the defendant's requirement that female bartenders wear makeup. In dissent, however, Judge Alex Kozinski noted that because Jespersen did not wear makeup, being made to do so was "degrading and intrusive": 

Everyone accepts this as a reasonable reaction from a man, but why should it be different for a woman? It is not because of anatomical differences, such as a requirement that women wear bathing suits that cover their breasts. Women's faces, just like those of men, can be perfectly presentable without makeup; it is a cultural artifact that most women raised in the United States learn to put on -- and presumably enjoy wearing -- cosmetics. But cultural norms change . . . . [A] large (and perhaps growing) number of women choose to present themselves to the world without makeup. I see no justification for forcing them to conform to Harrah's quaint notion of what a "real woman" looks like.
Thus, in contrast to makeup, a bra requirement does not treat women differently than men based on socially constructed distinctions between men and women but based on actual distinctions that are tied to sexual anatomy. In this regard, as Judge Kozinski suggests, a bra requirement is akin to a public decency law that requires women to cover their breasts but allows men to leave their upper bodies exposed.

Returning to the facts of Baez, I'm doubtful that the unusual circumstances in that case can tell us much, if anything, about whether bra requirements are lawful. By her own admission, the plaintiff usually did not wear a bra, and the rumors she complained about were apparently not really about her not wearing a bra but about her allegedly showing her breasts to the CEO (by not wearing a bra while also wearing a revealing shirt). The facts of Baez are similar to those in Spain v. Gallegos, 26 F.3d 439 (3d Cir. 1994), in which Ellen Spain alleged that she was subjected to a hostile work environment based on false rumors that she was having an affair with a male superior.  In concluding that these alleged rumors could have resulted in discrimination against Spain based on her sex, the court explained:
Unfortunately, traditional negative stereotypes regarding the relationship between the advancement of women in the workplace and their sexual behavior stubbornly persist in our society. Because we are cognizant that these stereotypes may cause superiors and co-workers to treat women in the workplace differently from men, we find that a reasonable jury could conclude that Spain suffered the effects she alleges because she was a woman.
The rumors that Baez complained about can be seen in the same way. She alleged that other employees spread rumors that she acted in an overtly sexual way in front of the CEO, a rumor that would not have been spread if Baez were male.

And finally, back to breastaurants. Even if bra requirements are not permissible as to a typical employer, that likely would tell us little about a breastaurant. If an establishment provides female sex appeal as a service, then it is clearly discriminating on the basis of sex. And if that underlying sex discrimination is legal, then it follows that the establishment can also require women to dress in a certain way, consistent with the kind of female sex appeal that it chooses to provide to its customers. 

Photo information: This a photo of a barn built by Mormon settler John Moulton, with the Teton Range in the background. It is generally believed that the Tetons were named by French explorers. Depending on which Internet source you check, "teton" means either nipple, teat, or breast.

This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on how to analyze any particular set of facts.