By Kristen Cifolelli, courtesy SBAM Approved Partner ASE
Most employers have policies that outline requirements regarding dress and appearance. These can range from business vs. casual dress, if body piercings or visible tattoos are allowed, and some outline grooming standards. Some employer grooming standards not only require a neat appearance but may also detail whether certain hairstyles or certain hair colors are prohibited or whether male employees must be clean shaven or have short hair. As employers define their dress code policies, they need to be cautious whether certain grooming restrictions could be discriminatory. policies
Federal law prohibits employers from discriminating against employees based on race, color, national origin, sex (including pregnancy), religion, disability, genetic information, or age (if the employee is at least 40 years old). State laws may prohibit employers from discriminating based on additional traits, such as marital status or sexual orientation. These laws prohibit discrimination in every aspect of employment, from hiring to firing. This includes workplace policies that regulate employee appearance, such as dress codes, grooming codes, and uniform requirements.
In February of this year, the New York City Commission on Human Rights (NYCCHR) issued new enforcement guidance on appearance and grooming policies that ban or restrict certain hairstyles. The guidance on hair discrimination specifically highlights protections for people who maintain particular hairstyles as part of a racial or ethnic identity, including natural hair, treated or untreated hairstyles such as cornrows, twists, braids, Bantu knots, fades, and Afros, and the right to keep hair in an uncut or untrimmed state.
Employers with four or more employees are now prohibited from discriminating or treating workers “less favorably” than others because of their racial, ethnic, or cultural natural hair or hairstyles. Employers are also prohibited from banning, limiting, or placing restrictions on natural hair or hairstyles to promote a particular corporate image, because of customer preference, or under the guise of speculative health or safety concerns.
A similar measure is currently pending in the California Legislature. It would provide that prohibited employment discrimination based on race under the Fair Employment and Housing Act (FEHA) also includes discrimination based upon hair texture and hairstyles. If enacted into law, this bill will require California employers to re-evaluate workplace grooming standards applicable to their work sites in order to ensure compliance with the law. The definition of “race” under FEHA would include “traits historically associated with race, such as hair texture and protective hairstyles,” including “braids, locks, and twists.”
While Michigan has not passed legislation to broaden workplace protections for employee dress and grooming practices, employers should be aware of growing national trends as other states follow suit of New York and California. In order to avoid potential claims of discrimination based on dress and hairstyle, employers should be cautious of the following restrictions:
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Hairstyle bans – Employers should not ban hairstyles traditionally associated with a single race or ethnicity. Theses types of restrictions should be removed from grooming policies. Accommodations may be needed for religious prohibitions on cutting one’s hair or chemically altering it.
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Shaving requirements – Certain religions have requirements that men wear a beard, while some African American men may be more prone to have a skin condition that makes shaving painful. Employers should be cautious with blanket requirements that male employees be clean shaven, and accommodations may be required.
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Tattoos and piercings – Similar to shaving requirements, some employees hold religious beliefs that certain tattoos and piercings be displayed and not covered.
While employers have a right to require employees to come to work in a clean and presentable condition, they should be cautious of blanket grooming policies that may impact specific demographics. Employee complaints regarding employer grooming policies are on the rise.