High Heels and Discrimination | Blog | Paul Doran Law

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High Heels and Discrimination

There have been a number of stories in the media recently regarding the case of Nicola Thorp who was working as a temp receptionist at the accountants PricewaterhouseCoopers (“PwC”). On attending work, Nicola was sent home for refusing to wear high heel shoes.

This led to a lot of publicity with a petition being started to make it illegal for companies to force women to wear high heels at work. At the last count, this had attracted more than 138,000 signatures and the issue will now be debated in parliament.

In our view, however, the petition is a little unnecessary as the law already makes it illegal for employers to force women to wear high heels to work.

There are two main types of discrimination, direct and indirect. Direct discrimination makes it unlawful for an employer to treat an employee less favourably because she is a woman. There is no defence to a claim of direct discrimination meaning if a woman can show that she was treated differently than a man would have been treated, she will be entitled to compensation.

Indirect discrimination relates to less obvious cases of discrimination. It prevents an employer from applying policies that put women at a disadvantage. The classic example is an employer who advertises a job with a stipulation that only applicants who are 6ft or over will be considered.

On the face of it, this does not appear to be discrimination as the requirement is not that “no women need apply”. However, since the overwhelming majority of people of 6ft or over will be men, the stipulation clearly puts women at a disadvantage.

The key difference between direct and indirect discrimination is that an employer does have the opportunity of defending a claim of indirect discrimination by showing that the policy he has applied is justified. If, therefore, the employer says that he needs people of 6ft and over so as to be able to reach high shelves, he may be able to defend the claim.

However, the Tribunal will also be entitled to ask if there are things that can be done to avoid the need for the requirement such as the provision of steps to people smaller than 6 ft. If the employer cannot give a valid reason, or if the reason can easily be resolved by other means, the employee or prospective employee will be entitled to compensation.

Returning to the case of Nicola and her high heels, we believe that there is a reasonable chance that she would succeed with a claim of sex discrimination. In the first instance, she could argue that the requirement that she wear high heels is direct discrimination as she is only being asked to do so because she is a woman. The employer would likely argue that it was not because she was a woman but rather it was because she refused to wear the prescribed uniform. It is possible that the employer would succeed with such an argument.

Nicola would have a much better chance of success if she argued that the requirement to wear high heels was a policy that puts women at a disadvantage compared to men. It is unlikely that it would prove too difficult to convince a Tribunal that, statistically, high heels are worn by more women than men and that they can cause discomfort.

Once this hurdle is overcome, it would then be for the employer to explain why the requirement is necessary. It is difficult to think of any reason for requiring women to wear high heels that is not sexually discriminatory in itself. In the absence of any valid explanation, or a clear explanation as to why she could not perform a receptionist’s role in flat shoes, Nicola would be entitled to compensation.

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