Legal Question in Employment Law in California

Can a bartender be fired for refusing to wear revealing clothing that consists of a bathing suit top and very short skirts when she is uncomfortable with her body? It is a new required dress code that was not in force when she was hired and the place ia a bar, not an entertainment venue. Please help!

Asked on 7/07/10, 6:12 pm

2 Answers from Attorneys

Deborah Skanadore Reisdorph Skanadore Reisdorph Law Offices

I agree. The employer should not be able to fire you under these conditions, but there are some questions I have to ask to help you answer this question. Do the clothes that the employer is asking you to wear cause you to be the recipient of more sexually harassing statements by the customers or co-workers? Does the clothing required set up an environment of hostile sexual connotation? If you answer these questions in the affirmative, you should complain to the employer that the required dress causes a hostile work environment. If the employer refuses to adjust the situation, I would be happy to represent you. An employer should not create such an environment in the workplace. You are entitled to a workplace free of any sexual harassment of any kind. By asking these questions, you are empowering your self in the workplace. Be strong.

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Answered on 7/07/10, 9:26 pm
Terry A. Nelson Nelson & Lawless

I disagree with my colleague. While there is a little 'grey area' argument available here, suitable dress standards for the particular business are at the discretion of the employer, with some limitations. Think about 'Hooters' restaurants. An employee knows and is required to adhere to their dress code of bra-less tank tops and hot pants if they want to work there. That's already been litigated and approved. A bar or night club environment is one in which servers are frequently required to wear revealing clothes as part of the 'environment' and 'atmosphere'. That also has been litigated. Asserting a 'modesty' claim in that case is going to risk termination for refusal to follow the rules and instructions of the employer.

IF you are working in a setting where such revealing dress code is not customary, necessary or appropriate, and you are being required to dress that way for the 'pleasure' of the mgmt, that is a different story, and could be grounds to claim hostile environment. Every case is fact dependent. If so, feel free to contact me to discuss your facts.

Your situation is what makes contested lawsuits, with no guarantee of outcome for either side. You will claim 'hostile work environment', and the employer will claim 'reasonable requirements'. You'll have to prove your claim meets the legal standards set out in the law. If you are serious about pursuing a claim of sexually hostile environment, you are required to file a Complaint with the Dept of Fair Employment and Housing first. When you interview with them, you will get their opinion of merit in your claim. They will file your claim, regardless of their opinion, but it is 99% certain they will simply provide you a Notice of Right to Sue / Case Closure, entitling you to find private counsel and file suit if you wish.

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Answered on 7/08/10, 11:42 am

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