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Like those sky high stilettos, the legal ground is shaky.

By Claire Zillman
May 12, 2016

For years now, women have been resigning their high heels—pointy pumps and peep-toe platforms—to the depths of their closets in favor of comfy sneakers and fashionable but forgiving flats.

But some workplaces, it seems, haven’t caught on to the trend. Two recent stories show that some employers are still forcing female employees to wear heels to work and the global sisterhood of suffering soles is rightfully outraged.

In the first, a viral photo showed the bloodied feet of a waitress at a chain restaurant in Canada who was forced to wear heels during a full shift. At the end of the day, her feet were “bleeding to the point she lost a toe nail,” according to a friend, who uploaded the picture. A spokeswoman for the chain Joey’s Restaurant, based in Vancouver, told the CBC that the waitress’s experience was due to a “lack of communication and understand around our guidelines,” which the spokeswoman says require male and female employees to wear a non-slip back dress shoe.

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The second came this week, when a temp worker named Nicola Thorp was sent home without pay from a scheduled receptionist job at PwC’s London office after refusing to wear shoes with a 2- to 4-inch heel. She says her employer, the Portico temp agency, had insisted that high heels are part of proper “female grooming,” and that it argued that Thorp had signed its “appearance guidelines.” Thorp told BBC Radio London, “I was expected to do a nine-hour shift on my feet escorting clients to meeting rooms. I said ‘I just won’t be able to do that in heels’.” She said she asked the agency to give her a reason why flat shoes would impair her from doing her job, “but they couldn’t.”

 

After the incident, Thorp started a petition to—as she puts it—change “dress code laws” in the U.K. so that “women have the option to wear flat formal shoes at work, if they wish.” The petition says, “It’s still legal in the U.K. for a company to require female members of staff to wear high heels at work against their will….Current formal work dress codes are out-dated and sexist.”

Shortly after Thorp began speaking out about the issue, Portico said it was changing its policy so that “female colleagues can wear plain flat shoes.”

At last count, Thorp’s petition had received more than 110,000 signatures, surpassing the 100,000 needed for Parliament to consider it for a debate. The swift response is likely due in part to practicality—why wear wobbly heels when stable flats are just as fashionable?—and in part to feminism. It’s backlash against a rule that sends women tiptoeing into a workplace where men are firmly flat-footed.

But for as much support as Thorp’s anti-heels movement has generated, directing such fury at employers’ dress codes is a bit misguided, especially in the U.K.

The “dress code laws” that Thorp’s petition references don’t really exist. “There is no written statutory law that deals with dress codes per se,” says Anna Birtwistle, a partner at employment firm CM Murray in London. Employers generally have the right to enforce dress codes at work if it’s a “reasonable request,” she told Fortune. Whether or not a dress code is discriminatory against women or other protected classes is determined entirely by case law, which is itself circumstantial—it depends on how a certain dress code relates to a worker’s ability to do her specific job.

Each cases raises different questions, like whether “a role is client facing or back office,” she says. When it comes to different standards for male and female employees, the required garments don’t have to be the same, but the “level of smartness” must be.

While there’s no official dress code law to change, Birtwistle says Thorp’s petition could potentially result in the Equality and Human Rights Commission issuing non-statutory guidance that warns employers about the legal hazards of requiring female employers to wear heels.

In the United States, meanwhile, heel-haters may have a little more legal ground to stand on.

At the federal level, the Equal Employment Opportunity Commission, which enforces employment discrimination, says “in general, an employer may establish a dress code [that] applies to all employees or employees within certain job categories.” It lists a few exemptions—ethnic or religious practices and disabilities—for which employers should accommodate. But the U.S. also has established case law that deems bias on the basis of sex stereotypes a kind of sex discrimination. That’s due in large part to a lawsuit filed against PwC by a woman named Ann Hopkins, who was passed over for partnership in the 1980s after male partners said she was too “macho” and in need of “charm school.” She quit the firm and won a lawsuit filed under Title VII of the Civil Rights Act, which forbids employment discrimination because of a person’s sex.

Plus, in some U.S. states there are laws that address workplace dress codes specifically. California, for instance, has a law that expressly prohibits companies from refusing to let a worker wear pants on the account of their sex. Some states also have laws against discrimination on the basis of gender identity and gender expression—a protection that might keep employers from distinguishing between masculine and feminine dress.

Broadly speaking though, the rule of thumb for employers in the U.S. is the same as for those in the U.K. Dress code restrictions must be pertinent to a job and can’t require more of one gender than the other. There have been instances in which female employees challenge a dress code that requires them to get manicures, wear certain hair styles, and put on a face full of make-up—none of which apply to their male counterparts. “You can very quickly go down this road of having something more burdensome on women,” says Laura Maechtlen, a labor and employment lawyer at Seyfarth Shaw.

Portico’s director Simon Pratt told the Telegraph that the firm was “committed to being an inclusive and equal opportunities employer” and actively embraced “diversity and inclusion within all our policies.” If that’s true and Portico required all its employees—no matter their gender—to dress professionally, Thorp’s case becomes not necessarily a question of legality but one of societal views—what is a “professional” woman supposed to look like?

The larger phenomenon of even the most stylish women ditching their heels—along with the public support of Thorp’s petition—indicate that “the level of smartness” that Portico said required women to wear heels can just as easily be achieved with a pair of sensible flats.

 

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