I receive many calls from employees stating that they are
being discriminated against because of dress, appearance, and grooming. They
were sent home, instructed to cover tattoos and piercings, fired, not promoted
and being treated unfairly. They want to sue their employer. Guess what? You
are usually going to lose the case and should most likely never even bring a
case unless religious or disability discrimination has occurred. So here is
another blog on workplace grooming and appearance (see my Feb. 22, 2010 blog “Body
Art and Tattoos at Work”).
Generally speaking an employer does not violate your civil
rights or cause employment discrimination for enforcing workplace grooming and
appearance policies. Sometimes the policies are titled: “Grooming and Personal
Appearance Policy”, “Professional Appearance Policy”, etc. Sometimes there is
not a written policy but the company enforces a professional appearance
standard.
What is a professional appearance standard? A
dress and appearance policy based on business needs that is applied uniformly.
Any appearance policy should be based on justifiable business reasons that do
not have a disproportionate effect on particular segments of the workforce. The
employer must ensure that such policies are applied consistently and fairly
without regard to an applicant's or employee's race, sex, national origin,
religion, color, disability, age, or any other protected status. Employers are legally free to deny that new corner office
to employees because they have bad breath or dress as though they just came
from the beach. Employers actually can
discriminate, because discrimination based on such characteristics does not
violate Title VII.
Depending
on the business an employer can fire you, request you to cover up, refuse to
promote, send you home for piercings, bad breath, visible tattoos, wrinkled
clothes, messy hair, hair color, casual dress, too much perfume or cologne, too
much makeup, messy office or cubicle, chewed fingernails, too suntanned and
many more grooming or appearance issues.
Again the
employer must ensure that such
policies are applied consistently and fairly without regard to an applicant's
or employee's race, sex, national origin, religion, color, disability, age, or
any other protected status.
Male vs Female
dress code policies. The courts do not require that both sexes must follow the
exact same rules. Instead, they hold only that both sexes, when in similar
situations, should be held to the same general standard. An employer
could say that all office employees with customer contact must present a
well-groomed, professional appearance. The standard is uniform but the
actual rules may accommodate sex-based differences, such as different hair
lengths. Dress requirements that reflect current “social norms” typically have
been upheld, even when they affect only one sex. Employers do not have to apply
identical dress or grooming standards to men and women when the differences are
justified by social norms.
Religious discrimination
and disability discrimination are two widely areas that employers can violate
an employee’s civil rights or discriminate. For instance; some religions
require men to wear beards, some require women to cover their heads, and some
disabilities make it very difficult for a man to shave or to their clothing
could be a wrinkled. An employer must be careful not to discriminate because of
these reasons. Reasonable accommodations can be made. However,
if an employer can show that the accommodation would be an undue hardship, such
as if the employee’s dress created a safety concern, it probably does not have
to allow the exception to its policy. Even if a religious belief regarding body
art is assumed, most courts have agreed that the duty to accommodate religious
dress issues is fairly limited and often will uphold an employer’s dress code
when based on clearly expressed business interests.
Many employees
mistakenly believe that they have a right to show tattoos and body piercings at
work. While tattoos and piercings may be examples of employee self-expression,
they generally are not recognized as indications of religious or racial
expression and, therefore, are not protected under federal discrimination laws.
An employer can require that tattoos and piercings not be visible, and they
can even prohibit employees from having them at all. Generally an employer will
ask you to cover them up.
Sex discrimination
claims are usually not successful unless the dress policy has no basis in
social customs, differentiates significantly between men and women, or imposes
a greater burden on women. Thus, a policy that requires female managers
to wear uniforms while male managers are allowed to wear "professional
dress" may be discriminatory. However, dress requirements that reflect
current social norms generally are upheld, even when they affect only one sex. Policies prohibiting male employees from
wearing earrings, but allowing women to wear them, generally have been upheld
by the Courts. Minor differences in personal appearance codes that reflect
customary modes of grooming do not constitute sex discrimination.
Therefore, the employer’s request that a male employee not wear earrings, when
female employees were allowed to so, did not violate Title VII. Men generally
have not been successful in claiming discrimination when policies restrict long
hair for men only. Most Courts have held that “male only standards” such
as male hair length is not sex discrimination. Dress codes that have no
basis in social customs, that differentiate significantly between men and
women, or that impose a greater burden on women usually are not upheld.
Race discrimination
claims can be difficult to prove employees must show that the employer’s dress
code has a disparate impact on a protected class of employees. Race
claims have been successful in challenges to no beard policies. Some
courts have determined that a policy that requires all male employees to be
clean-shaven may discriminate if it does not accommodate individuals with
pseudofolliculitis barbae (PFB), a skin condition aggravated by shaving that
occurs almost exclusively among African-American males. No beard rules also may
violate disability discrimination laws. Some have ruled that pseudofolliculitis
barbae is a disabling condition and requires reasonable accommodation under
state and federal disability laws and the federal Rehabilitation Act.
Dress code policies
could violate the National Labor Relations Act (NLRA). Several courts have
determined that employees have the right to wear union buttons and pins to
work, unless the wearing of these items creates a safety hazard or, in the case
of workers with public contact, the employees consistently are required to wear
uniforms without buttons and pins.
