Osoyoos server’s refusal to wear bra leads to termination, human rights complaint

Osoyoos server’s refusal to wear bra leads to termination, human rights complaint

Christina Schell is filing a human rights complaint after being told by Osoyoos Gold Club that she had to sign a dress code requiring women to wear a bra or tank top under their uniforms. Since there is no similar requirement for men, she says this rule is discriminatory under the B.C. Human Rights Code. The long-time hospitality worker, who's only been with Greenside Grill for three weeks, is now out of a job. (Richard McGuire photo)

By Richard McGuire

Special to the Chronicle

An Osoyoos woman is filing a complaint with the B.C. Human Rights Tribunal because her former employer, the Osoyoos Golf Club, has introduced a dress code that requires women to wear a bra or tank top under their uniforms.

Christina Schell, 25, said she was told she had to sign the dress code agreeing to this condition as a requirement to continue working as a server at the Greenside Grill.

She refused to do this because she said the dress code is discriminatory since it only applies to women. As a result, her employment ended.

Schell, who has only been at Greenside Grill for three weeks, said she has been working in the hospitality industry since she was a young teen and she has never had any disciplinary issues.

She has chosen not to wear a bra for the last three years for comfort and health reasons, and until now it has not been an issue, she said.

The Osoyoos Times sought comment from Doug Robb, general manager of the Osoyoos Golf Club, but he has not yet responded. He did, however, tell another media outlet he couldn’t comment on the case.

“No male employee is required to wear an undershirt,” Schell said. “So this is where it becomes a discriminatory issue for me… I don’t think it’s anybody else’s business what’s under my clothes. As a female, that I can’t choose my undergarments in this day and age, it’s really, really tough.”

The B.C. Human Rights Code prohibits discrimination on the basis of gender, and dress codes that treat men and women differently could be discriminatory, lawyers say.

“I guess my feeling is that it would probably be deemed to be discriminatory by the Human Rights Tribunal,” said David Brown, a lawyer with Kent Employment Law based in Kelowna. “But ultimately the tribunal will have to decide that.”

Discrimination means an adverse treatment being imposed on one group and not others, Brown said. This is a case of specifying women’s undergarments when there is no such provision in place for men, he added.

A woman feeling that wearing a bra goes against her preferences or comfort could say this is adverse, he said.

An exception would be where there is a bona fide occupational requirement, which might permit discrimination.

Brown gives the examples of a blind person wanting to be a bus driver or a person in a wheelchair wanting to work in a construction job that requires climbing scaffolding.

“It (the requirement) is not something that’s made up,” he said. “In this case here, I’m going to assume this individual has to wear undergarments under her top because it’s offensive to clientele or distracting to staff. How does someone not wearing a bra affect their ability to do their job? I don’t see it as being an occupational requirement. It seems to be rather arbitrary how they decided this… There doesn’t appear to be any justification beyond an employer’s preference.”

There has previously been a B.C. Human Rights Tribunal ruling that dress codes can’t require just women to wear particular clothing, such as a bikini top. But there has not been a ruling in B.C. specific to bras.

Last September, a server at East Side Mario’s in Timmins, Ontario, argued that a requirement that she wear a bra was discriminatory. But that case didn’t go to a tribunal because the company backed down.

Brown said he is not aware of other case law dealing with a requirement to wear a bra.

Schell said that in addition to comfort – especially in hot weather – she chooses not to wear a bra for health reasons. It’s better for chest muscles, collagen production, skin, circulation, sleep quality, lung function and reducing breast cancer, she said.

“It helps you to age well – to say it nicely,” she said. “It keeps things where they’re supposed to be.”

Schell said operation of Greenside Grill was previously contracted out, but the Osoyoos Golf Club took over its operation in May.

In mid-June, when the dress code was issued, employees were given new shirts that are 100 per cent polyester and have a silky texture, Schell said.

“It’s not see-through,” she added. “It’s completely opaque. So I’m fully covered.”

She admits that the bump of a nipple might have been visible in the material.

“I’d love to know why my boobs offend somebody,” she said. “They’re not hanging down by my waist. If they were, whose problem is it but mine?”

Schell, who is a Red Seal Chef and has worked in numerous restaurants, both in the kitchen and in the dining room, said the issue has never come up before in her career.

Most recently, she worked six months at Boston Pizza in Osoyoos, and prior to that, she worked a season and a half at Terrafina Restaurant at Hester Creek.

Schell said that over the course of her career, she’s had to sign numerous uniform agreements, including with golf clubs, but wearing a bra has never been a stipulation.

“This is not a thing that is standard or acceptable,” she said.

She believes an older woman raised her undergarment situation in a complaint during a ladies night at the golf club.

Schell thinks generational attitudes probably have a lot to do with the reaction to her.

She said she was very happy to be working at Greenside Grill and that club members treated her with respect.

“I genuinely liked my job and would have liked the agreement (dress code) amended and just to continue on with my work,” she said.

But this incident has soured her, and two managers she liked have now left, so she now says she doesn’t want her job back.

“I was so degraded,” she said of being told she couldn’t work there unless she signed the agreement. “I felt sadness or panic at first, but the bottom line is I was angry and was degraded. I was just sad that I ever got to be in the position in the first place.”