Can the company force me to wear heels and a skirt? Depends

A few days ago, a Russian metallurgical company announced that it was going to launch a “femininity marathon” with the aim of “cheering up” its workforce, made up of 70% male workers. Specifically, the company offered a bonus of 1.35 euros a day to employees who wore a skirt or dress to work, as well as those who applied "discreet makeup". This initiative runs counter to a campaign that is gaining steam in Japan: the #KuToo revolution. In homage to the famous #MeToo movement and playing on the Japanese words kutsu (shoe) and kutsuu (pain), its promoters are demanding a law that prohibits companies from requiring women to wear heels at work. "It is sexual discrimination and constitutes harassment," proclaims its ideologue.

Beyond the discrimination that is usually hidden behind these types of episodes, the truth is that establishing a code on employee clothing is part of the right to business freedom included in article 38 of the Spanish Constitution. This This precept legitimizes companies to set uniform criteria in order to project a certain image. However, they must exercise this power with caution, since, if they exceed certain limits, they could violate fundamental rights of workers, such as their own image, non-discrimination or occupational health and safety.

One of the criteria that companies rely on and that the courts have ratified to justify certain impositions on work clothes is that of “social uses and customs”. That is to say, certain demands on clothing are justified by the practices, habits and rules assumed in a specific sector or in society as a whole. However, two circumstances must be taken into account. The first is that uses and customs vary over time; not everything that was admissible in the 1990s is still so today. Secondly, and as Antonio Pedrajas, managing partner of Abdón Pedrajas, points out: "The guidelines must follow criteria of reasonableness and proportionality." Thus, any dictate that is arbitrarily imposed based on a classical (or retrograde) conception of what is expected of a woman's clothing "may entail discriminatory treatment based on gender."

The Supreme Court ruled in this regard in 2011, when it upheld the claim of nurses at a hospital in Cádiz forced to wear skirts, aprons, caps, and stockings to carry out their work. According to the ruling, these conditions, imposed only on female staff, sought to project an image "that does not correspond to a current vision of health services." For this reason, the magistrates rejected that it was a proportional, necessary or duly justified measure, calling it a "discriminatory business practice".

Sanctions

If the company crosses the legal borders, it can face two types of sanctions. On the one hand, and in the event that the dress code violates the rights of workers, they can take it to court (alone or through the unions in a collective action) and request compensation for damages. On the other hand, the Labor Inspectorate can establish administrative sanctions ranging from 6,000 euros, in the case of minor infractions, to more than 187,000 euros in the most serious cases.

The concept of use and social custom “constitutes a very abstract criterion that has evolved over time,” explains Pedro J. Linares, Confederal Secretary of Occupational Health for Comisiones Obreras. This was established by another Supreme Court ruling, from 2001, which rejected that Renfe's dress code, which differentiated uniforms by gender (suit for men, jacket and skirt for women), was discriminatory. Instead, he described the measure as "objective and reasonable based on social customs in the way men and women dress." A very different criterion from that of the Superior Court of Justice (TSJ) of Madrid which, in 2015, annulled the dismissal of a store clerk for not wearing makeup and heels to work, as required by the establishment's attire rules. In this case, the magistrates determined that the controversial guideline did not conform to an "adequate appearance in accordance with social customs", but rather involved a violation of the worker's right to her own image.

Possibility of choice

Therefore, when setting a dress code, the company "must comply with the requirements of proportionality and necessity , take into account the comfort of the clothes for the exercise of the activity and avoid differentiated fees between men and women”, points out Linares. In the case of fixing differences by gender, the measure "must be coupled with freedom of choice," she asserts. Or, in other words, that it is not considered as an obligation, but as an option.

Beyond checking that the uniform does not violate the fundamental rights of the employee, "the company must ensure that the requirements comply with the safety and occupational risk prevention codes," says Alfredo Aspra, labor partner at Andersen Tax & Legal. One of these risks is the imposition of heels, as established by the TSJ of Madrid, also in 2015. In this case, the ruling annulled the sanction imposed on a National Heritage guide for refusing to wear such footwear, which it called inappropriate and uncomfortable, since his position required him to spend a lot of time on his feet. Beyond the discriminatory component, the court considered that the imposition of wearing heels could "harm the health of workers", by resulting in discomfort, fatigue and even injuries.

Likewise, the company must carry out an assessment of the risks that may arise from the position and implement the necessary safety measures in work clothes, since, as Aspra recalls, "it is not only about offering a quality service to the client, but also to protect the health of the workers”.