Does your company have a dress code, or an appearance or grooming policy? Many companies do. What exactly is a dress code or appearance/grooming policy, and why is it important?
Generally speaking, these policies are a set of standards set by a company to provide its employees guidance about what is and is not appropriate to wear at work. They will tend to vary with each company, depending on the company’s specific needs and clientele. They range from casual to formal, depending in part on the number and types of interactions with customers or clients. Whether we want to believe it or not, employee attire and grooming will often influence how clients and the public in general perceive the company. Dress codes or appearance/grooming policies may also reflect the company’s (or at least its founder’s) values.
But can an employer really tell its employees how to dress and groom themselves? More specifically, can a company dictate its employees’ hairstyles? Are there any limits? What about when or if hair is an expression of an employee’s beliefs? In particular, what if hairstyle is related to religious practices? Aren’t there some hairstyles that might be predominantly–if not exclusively–associated with a particular race or ethnic group, or culture? What happens when a company’s grooming policies attempt to restrict hairstyles associated with a particular religion or culture? The short answer: It depends. (C’mon, you have to be expecting that from an attorney.) Seriously though, it depends on the specific facts. Here, let’s look at some examples and you’ll see what I mean. Courts are more likely to find appearance policies that attempt to restrict hair length or style related to religious practices discriminatory within the meaning of either federal or state anti-discrimination laws. As you may know, Title VII of the Civil Rights Act of 1964 prohibits discrimination against applicants or employees based on race, creed, color, religion, sex or national origin. OK, but can a dress code or appearance policy that presumably applies to everyone be discriminatory? Actually, yes. While policy or practice may, on its face be neutral (i.e. non-discriminatory) as applied it may adversely impact a disproportionate number of people from one or more protected classes. If so, it has a discriminatory impact and will violate Title VII. Check out this example from the EEOC’s publication on “Religious Garb and Grooming in the Workplace: Rights and Responsibilities:
David wears long hair pursuant to his Native American religious beliefs. He applies for a job as a server at a restaurant that requires its male employees to wear their hair “short and neat.” When the restaurant manager informs David that if offered the position he will have to cut his hair, David explains that he keeps his hair long based on his religious beliefs and offers to wear it in a ponytail or held up with a clip. The manager refuses this accommodation and denies David the position because he has long hair. Since David could have been accommodated without undue hardship by wearing his hair in a ponytail or held up neatly with a clip, the employer violated Title VII.
Wait a minute. What if there is a safety consideration? Aren’t there some positions where the public interest might also weigh in favor of dress codes or grooming policies? Well, yes. For example, if David in the above example were instead working with machinery and were not willing to tie back or cover his hair, the safety issue would probably outweigh his asserted religious rights. Generally speaking, if the employee wears the hair length or style pursuant to a religious practice, an employer has to at least try to provide a reasonable accommodation, unless doing so would pose an undue hardship. (Note however, that the standard for showing undue hardship in this context is generally less stringent that the one for proving undue hardship under the ADA. In this context the employer does not have to jump through as many hoops to show that a requested accommodation is an undue hardship).
Now, as you probably know, Title VII is the federal law. The federal law usually sets the floor or the minimum standard an employer must meet. Many states also have anti-discrimination laws, and those laws may raise that floor, so to speak, thus providing more protection to employees and imposing further obligations on employers. That’s why you will also need to be aware of the laws in each state where you have employees working.
OK, what about grooming policies that may impact hairstyles that are closely or perhaps even exclusively associated with a particular race or culture? While the EEOC did take the position that a policy that attempts to proscribe such hairstyles amounts to racial discrimination, it has not necessarily found support for that position in the courts. Let’s look at this example:
In EEOC v Catastrophe Management Solutions (Case No.14-13482-12/5/17), the company rescinded a job offer to an applicant when it asked her and she refused to remove her dreadlocks. The EEOC sued on her behalf, arguing that “a prohibition of dreadlocks in the workplace constitutes racial discrimination, because dreadlocks are a manner of wearing the hair that is physiologically and culturally associated with people of African American descent”. Title VII does not specifically define “race”. When the EEOC apparently argued that the definition of race includes anything that would be associated with a particular race or culture, that was seen as an attempt to expand that definition. The United States District Court dismissed the claim, reasoning that precedent required an allegation that dreadlocks “are an immutable characteristic of Black individuals”. The 11th Circuit Court of Appeals affirmed the dismissal, holding that ““[B]anning dreadlocks in the workplace under a race-neutral policy, without more, does not constitute intentional race-based discrimination”.
Wait. We’re not done. Hairstyles associated with certain races or cultures may not be banned under federal laws, but some states and localities have passed laws essentially adopting the EEOC position. For example, the New Jersey Division of Civil Rights in September published an Enforcement Guidance, clarifying that the NJ Law Against Discrimination applies to discrimination based on hair styles, particularly those “closely associated with Black people”, and that prohibits employers from refusing to hire or treating “a Black person differently because they wear their hair in a style that is closely associated with being Black.” The Guidance goes further: singling out a particular hairstyle is deemed direct evidence of race discrimination in violation of the NJ Law Against Discrimination. The Guidance also prohibits discrimination based on hairstyles associated with a particular religion (e.g. sidelocks worn by Orthodox Jewish men [peyot], and Sikh persons who wear uncut hair. This Guidance is very similar to one issued by the New York City Human Rights Commission and also follows legislation passed in New York State and California providing similar protections.
So, what can you do to make sure your grooming policies don’t violate either current or future anti-discrimination laws ? Here are some Do’s and Don’t’s, for starters:
- Implement or enforce grooming or appearance policies that ban, limit, or restrict hair styled into twists, braids, cornrows, Afros, locs, Bantu knots, fades, or other hairstyles closely associated with Black racial, cultural and ethnic identity;
- Selectively enforce facially neutral grooming policies – such as requirements to maintain a “professional” appearance; for example, Black employees with shoulder length hair or braids cannot be told to change their hairstyle, if white employees with long hair are permitted to maintain their hairstyles; or
- Justify policies that explicitly or in practice, ban, limit, or restrict natural hair or hairstyles associated with Black people or certain religious groups (e.g. Sikhs, Rastafarians, Orthodox Jewish men) based on a desire to project a certain ‘corporate image,” because of concerns about ‘customer preference’ or customer complaints, or because of speculative health or safety concerns.”
- Make sure that health or safety justifications are rooted in objective, factual evidence – not generalized assumptions – that the hairstyle in question would actually present a materially enhanced risk of harm to the wearer or to others.
- Consider whether a legitimate health or safety risk can be eliminated or reduced by reasonable alternatives, such as hair ties, hairnets, or other head covering, to banning or restricting a hairstyle.
That should be enough to get you started.
Watch my television interview on Stop My Crisis with Vivian Gaspar.
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