Jack Loughran

Labor law holds generally that employers can require employees to adhere to reasonable workplace standards for appearance, grooming and dress, so long as neither gender is disproportionately burdened.<br />
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To that end, “employers may have different grooming standards for men and women so long as both sexes are expected to conform to reasonably prescribed grooming standards,” says Heather A. Hoyt, a labor and employment attorney with Pepper Hamilton LLP (www.pepperlaw.com). “Policies requiring simply a neat, clean, professional appearance therefore may be considered a best practice for many businesses.”<br />
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Hoyt notes, however, that that while employers generally must apply standards uniformly, recent court cases show that employers need to be aware of potential accommodations for employees’ bona fide religious beliefs and transgender issues.<br />
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<strong>Uniform Application</strong><br />
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Employers can have different employee grooming requirements for men and women, but distinctions are not always clear-cut. Hoyt explains that a female bartender, who sued after she was fired for refusing to wear mandated makeup to work, failed to persuade the Ninth Circuit Court of Appeals that the grooming policy was particularly onerous.<br />
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But in another case, Hoyt says, the Fifth Circuit held that a newspaper’s grooming code requiring different hair lengths for male and female job applicants “treated applicants differently as a result of a sex stereotype. The court called for the newspaper to justify its grooming code as a bona fide occupational qualification, not merely a preference for its employees in the public eye to be groomed according to customarily accepted business standards.”<br />
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Religious Accommodations</strong><br />
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If an employee’s appearance is because of sincerely held religious beliefs, the employer may have to accommodate the employee depending on whether the accommodation would cause an undue hardship. But again, matters are not always cut-and-dry. When Red Robin Restaurant faced an EEOC lawsuit when it fired a waiter who refused to conceal wrist tattoos he claimed symbolized his devotion to his religion, the court rejected the restaurant’s argument that the violation of its no-tattoo policy would hurt the company’s self-defined “wholesome image.”<br />
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But when Costco was sued for discrimination by a cashier who claimed that her religion required the display of an unusual ear piercing, “the court found that Costco had offered the employee a reasonable accommodation by requesting that she cover up the piercing during her work hours,” Hoyt notes. “On the other hand, a similar accommodation offered to a Muslim employee to remove her religious head covering while she served clients, was found not to be reasonable. Without a bona fide safety concern, an employer probably could not prohibit a Muslim woman from wearing her hajib,” Hoyt says.<br />
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<strong>Transgender Issues</strong><br />
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Approximately 13 states, and many cities and counties, now protect gender identity or recognize it as a protected characteristic. Some federal courts have also recognized transgender discrimination as sex stereotyping and/or discrimination. Example: In Smith v. City of Salem, decided by the Sixth Circuit in 2004, a male firefighter who intended to transition to a female was harassed by co-workers over his increasingly feminine appearance. After speaking with supervisors about the harassment, Smith was suspended. The court held that discrimination on the basis of Smith’s feminine appearance was illegal sex stereotyping.<br />
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What does this mean for an employer who enforces gender-based grooming standards and has an employee whose appearance or characteristics are considered gender atypical? <br />
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Hoyt says the employer can continue to uniformly enforce its grooming standards. “However, to avoid liability, the employer should recognize the self-identified gender of the employee, regardless of surgery or documentation,” she adds. “The transgendered employee should be permitted to dress according to the employer’s standard for his or her gender identity.”<br />
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As with any employment rule, employers with grooming or dress standards that are not gender neutral should ensure the policies reflect legitimate business interests, and are not intended to disadvantage any group of employees.<br />
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Pepper Hamilton LLP (www.pepperlaw.com) is a multi-practice law firm with more than 500 lawyers in seven states and the District of Columbia. The firm provides corporate, litigation and regulatory legal services to leading businesses, governmental entities, nonprofit organizations and individuals throughout the nation and the world. The firm was founded in 1890.<br />
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