Workplace Grooming and Appearance Policies and Enforcement

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.