You may have seen a recent news item about a woman who claims her supervisor told her to “change your bra, or you don’t have a job.” No, this is not one more episode of sexual harassment in the workplace. Instead, it is a somewhat awkward, perhaps amusing (at least for those not involved), definitely unique workplace situation – another example of why being an HR professional is never boring.
Here is the story: A female employee sorts mail for a company under a contract with UPS. She has to go through a metal detector to get into work every day, and she claims her underwire bra sets it off. She prefers that style of bra and explains to her supervisor (also a woman) that she needs the support it provides. However, her supervisor supposedly tells her that she has to stop wearing bras that set off the detector, presumably because of the delay and inconvenience it causes security to have to carefully check her every day. According to the employee, she was given the ultimatum of either wear a different bra or find another job.
For its part, a UPS spokesman says that the employee is still employed and does not have a history of setting off the metal detector. There has been no public comment from the company that provided her to work on the UPS contract. So, it’s hard to know exactly what the truth is.
Regardless, this unique situation raises an interesting question: Can an employer restrict the wearing of a certain item by an employee that causes delays in entry to (or exit from) work, presumably inconveniencing others? If the item is of a religious nature, or is related to a medical condition, there would be obligations to consider reasonably accommodating the wearing of the item under Title VII or the ADA. This would depend on how problematic setting off the metal detector really was, and if there were alternatives for entry/exit or for wearing something that serves the same purpose but doesn’t cause the problem with the detector.
If it is an item of purely personal preference, those laws wouldn’t apply. So, an employer could impose this requirement on the employee. But does an employer really want to do that? The inconvenience would need to be very significant before a reasonable employer would terminate a (presumably) otherwise capable employee. The lost productivity, the costs incurred in replacing the employee, the negative morale issues and potential harm to employee relations, and the likely horrible PR would suggest that termination could only make sense if the problem were extreme. Further, it’s not hard to envision a clever attorney claiming that terminating the employee is a form of sex discrimination, since men don’t wear bras to work. That might not ultimately be a successful theory in federal court, but it sure would be litigation that most employers would rather avoid.
We’ll have to see what plays out. Likely, we will never hear about this again, since the employer, the employee and UPS will probably figure out a solution to address this problem (and to stay out of the press in the future). But, this news story is a reminder that just because an employer is permitted to place many rules and restrictions on its employees, that does not mean all of those rules or restrictions are good ones. When we talk about using common sense, sometimes we have to remember that common sense is not always so common.