Grooming policy: how far can employees go?
May 10, 2012
This can be one of the most contentious workplace issues: Dealing with employees’ appearance, everything from what they wear on the job to how they are wearing it, to jewelry they wear, to where they are wearing it, to exposed tattoos and other forms of body art.
Employers’ attempts to dictate their employees’ appearance on the job has led to many legal contests and court decisions. Following are three examples:
1. In one case, Alamo-Rent-A-Car was found guilty of violating an employee’s religious rights when, after the terrorist attacks of 9/11, it reversed a previous practice of allowing an employee to wear a head scarf. The employee wore the scarf anyway and was fired. An Equal Employment Opportunity Commission (EEOC) investigation found that Alamo had no legitimate business purpose for the decision and made no effort to accommodate the employee’s religion. (EEOC v Alamo Rent-A-Car, LLC; ANC Rental Corporation.)
2. In another case, Costco Wholesale fired Kimberly Cloutier when she refused to remove an eyebrow ring. The retailer had a storewide policy of prohibiting facial and tongue jewelry. The employee claimed that Costco violated her religion (the Church of Body Modification), that required her to have facial and body piercings. She complained to the EEOC. During mediation, Costco offered to allow her to return to work wearing a Band-Aid over the piercing, or wearing a clear plastic retainer in place of the ring. But Cloutier rejected these solutions, saying that her faith required her to display piercings.
The EEOC found Costco guilty of religious bias. But the U.S. Court of Appeals ruled that because Costco had proposed possible solutions that Cloutier rejected, Costco had made a good faith effort to accommodate her religion. (Cloutier v Costco Wholesale Corp.)
3. In a third case, Deborah Connor, a clerk at the Hub Folding Box Company, sued her employer for gender discrimination and retaliation. The employer had told Connor to cover a heart-shaped tattoo on her forearm or be terminated, but had not required a male employee to cover his Navy tattoo. The company’s position was that customers would react negatively to seeing the tattoo on the female employee because a tattoo on a woman “symbolized that she was either a prostitute, on drugs, or from a broken home.” In contrast, the employer believed men with tattoos were heroes. The court ruled that the employer’s position was based on outdated gender stereotypes and constituted an unlawful basis for treating men and women differently in the workplace.
(Hub Folding Box Company, Inc., v Massachusetts Commission Against Discrimination.)
So, how far can the employer go to define, and even control, the appearance and grooming of employees on the job?
First guideline: Your decisions on what clothing, jewelry, body ornamentation, and appearance are acceptable must be work-related. Your code must be based on business necessity.
Example: You have a restaurant. You can justify prohibiting employees who are seen by your clientele from showing body piercings — such as tongue and nose jewelry — that you have reason to believe can upset clientele.
Second guideline: Your code is necessary for safety reasons. Example: You can prohibit machine operators from wearing loose clothing and loose jewelry that can get caught in the moving parts.
Third guideline: Your code is NOT based on stereotypical personal beliefs, and it does NOT discriminate against a protected class.
Some examples: Do you permit female employees to wear long, dangling earrings, but prohibit male employees from wearing earrings? Do you prohibit mustaches and beards and require men to be clean-shaven, placing a burden on some men (particularly men of African ancestry) who have facial skin conditions that are aggravated by shaving? Do you specify “traditional business clothing for office employees, such as business suits and dresses” …causing objections from several employees who want to wear clothing dictated by their religious beliefs?
Fourth guideline: Be specific in spelling out appropriate and inappropriate dress and appearance standards. Example: “‘Punk’ and excessively bright-colored/or eccentric-type hairstyles are not acceptable for employees working in public areas or whose job duties require them to meet customers and visitors to the workplace.”
Fifth guideline: Be flexible and have different standards for employees with different job duties. Example: Permit warehouse employees to display body tattoos and body piercing, but prohibit employees who deal with the public, customers and visitors from displaying body tattoos and body piercings.