How people dress for work has gotten increasingly casual ― especially during the COVID-19 pandemic. Button-down blouses, jackets, heels and slacks are styles of the past. For remote workers, athleisure reigns supreme, and many people plan to keep it that way. In a May survey of 1,000 workers, nearly half said they plan to dress more comfortably at work.
But does a casual dress code permit going braless? No matter how laid-back the office I’ve worked in has been, I’ve still put my arms through two straps and snapped on a bra. Although I go braless working from home, I am still not comfortable doing so when working with other people.
For some people, bras are the supportive garments they were originally designed to be as an alternative to corsets. But nowadays there are more people who prefer or need the comfort of going braless who may be wondering if they can do so in the workplace without facing disciplinary action.
Do you have to wear a bra to work?
As with many legal questions in the U.S., the answer is yes and no, legal experts say. Yes, your employer can make you conform to a dress code.
At work, clothes are not just clothes ― they send status signals about what kind of workplace your employer wants to be. Your boss can enforce your employer’s preferences by not letting you wear blue jeans, for example. The bigger question is in how consistently the dress code is applied.
“In the battle of the bra versus the free-range breast, employers can require complete coverage, but they should be careful about dictating exactly how employees comply,” said Susan Scafidi, founder and academic director of the Fashion Law Institute, a nonprofit academic center at Fordham University School of Law.
In general, there can be dress code requirements that differ between genders. “If men are required to wear a suit and tie, an employer can mandate that female employees dress in analogous type of business attire,” said Jeffrey Kimmel, an employment lawyer and partner at the national law firm Akerman.
“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.’”
– Susan Scafidi, director of the Fashion Law Institute
But there are exceptions in certain jurisdictions. Under California law, for example, employers can’t ban employees from wearing pants on account of their gender. New York City’s Human Rights Law goes one step further and bans employers from imposing different requirements for people based on gender. “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,” the law states.
That means that in New York City, either every employee has to wear a bra, or nobody is required to. Asking a female employee to wear a bra is not the equivalent of asking a man to button up, said Scafidi.
But even if you are subject to a dress code, that code is limited. If you can’t wear a bra for medical reasons like a recent surgical incision, your employer has to accommodate you under the Americans With Disabilities Act. And your boss can’t create a dress code that treats men and women unequally at work. 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. “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.”
If you knew you couldn’t show your nipples through your clothing, you would have a clear expectation on how to present yourself at work. If your boss wants bra-wearing employees, they should ideally have a clear gender-neutral dress code stating bodily areas needing coverage.
Without a clear dress code, the issue becomes a legal gray area. A vague statement like “no inappropriate revealing clothing” is subject to interpretation, said Scafidi.
Visible panty lines would also be hard to ban
On the topic of undergarments, what about underwear? Can your employer police your underwear and ban visible panty lines?
Kimmel said it’s “probably not a good idea for an employer to have a specific policy like that, as it’s clearly not gender-neutral. If it fit into a more gender-neutral policy of dressing again in a professional business attire, it might pass muster.”
Title VII would likely be the issue if female employees are singled out over their underwear. “The argument would be that men don’t have restrictions concerning whether somebody could see their undergarments, or whether they’re wearing undergarments,” said Kimmel.
A more gender-neutral way of saying “no VPL,” which sounds more female-oriented, is saying “no visible outlines of undergarments worn below the waist,” said Scafidi.
But if you do get sent home over your underwear lines, it could land your employer in hot water. Take the scenario of your boss sending you home over seeing your underwear and there not being a formal policy on this rule. “From that point on, the boss would have to make sure that that rule was applied consistently,” Scafidi said. “You as the employee who was a) embarrassed, b) sent home, c) lost some money over this potentially could have an action for discrimination if you could show that this was enforced in a way that was discriminatory and created some kind of impermissible sex stereotyping or an unequal burden.”
Your boss can bring this up without it being discriminatory
Let’s say you are a boss reading this, and you want to discuss your employee’s visible panty lines or braless state without humiliating them or setting off potential legal action. Personal presentation at work is a sensitive topic, but there’s a way to bring it up.
A good manager knows to have difficult conversations with a colleague while preserving their dignity. Don’t do it in public in front of any witnesses. In private, you could first mention whatever dress code policy you have or are in the process of making and then note something like, “In general, we aspire to professionalism, and while I respect your right to wear the things that make you feel comfortable in doing that job, this may be undermining your professional appearance with our colleagues and with our clients,” Scafidi said. “Putting it in terms of being on the employee’s side and being concerned about the wellbeing and professional advancement of the employee is certainly a thoughtful way to approach the conversation.”