We have just heard about an apparent controversy at Starbucks over a new corporate dress policy — apparently the policy limits an employee’s right to wear certain types of jewelry, clothing and shoes.
Under the policy rings may not have stones in them, nose studs must be small and only two earrings per ear are permitted.
Tattoos cannot be on the face or throat and may not have lewd messages, and hair may not be in bright or “unnatural” colors.
Is all of this legal? Depends.
A lot has been written lately about dress and grooming codes. Indeed, we have done a lot of the writing.
On its face the Starbuck’s policy appears perfectly legal. But serious problems may arise in its application, as Abercrombie & Fitch knows (as does the Supreme Court, which agreed last month to hear an appeal by the EEOC of A&F’s ”Look Policy”).
Grooming/Dress Policies and Title VII
We have written before that although Title VII does not prohibit dress or grooming rules per se, such rules may still violate Title VII if they have a disparate impact on, for example, employees who have religious beliefs which require a certain dress or hair style. As with most situations involving religious beliefs, an employee must be accommodated as long as this does not cause an undue hardship to the employer.
We cited a few cases to remind us that just because employers have a policy that appears neutral on its face by, for example, prohibiting all employee from wearing or displaying things like tattoos, piercings, long hair, or head scarves, the policy may still run afoul of Title VII’s prohibition against policies which have a “disparate impact” on employees with certain religious beliefs or practices.
With regard to hair styling in particular, a couple of years ago we quoted a Missouri Department of Labor spokeswoman who aptly said that:
“An employer may condition a job on an employee’s compliance with the employer’s hair styling preferences, unless the employee’s alternative hair styling preference is connected with the employee’s inclusion in a protected category. For example, a particular hair style may be a tenet of the employee’s religion, or the employer may decline to hire a prospective employee because the employee is considered to be disabled because of his or her hair style (such as believing someone without hair to be suffering from cancer).”
We also found a good article on workplace dress codes and disparate gender impact. The Business Management Daily of June 4, 2012 prefaces its article by noting that “Female employees who are accused of wearing clothing that is too revealing may complain of sexism. Male employees prohibited from wearing shorts, for example, may argue that a double standard exists because females are permitted to wear skirts. But don’t let employees’ complaints prevent you from upholding your company’s appearance standards. Employers have the right to define appropriate attire in their workplaces.”
The Rules Are Tricky
These rules can get quite complex, as we noted many times, and it is recommended that counsel be consulted before an employer refuses an employee’s accommodation request.
A few cases which we wrote about before are instructive that just because employers have a policy that appears neutral on its face by, for example, prohibiting all employee from wearing or displaying things like tattoos, piercings, long hair, or head scarves, the policy may still run afoul of Title VII’s prohibition against policies which have a “disparate impact” on employees with certain religious beliefs or practices.
We reported about the case filed by the EEOC against Abercrombie & Fitch (noted above) where an Oklahoma jury awarded $20,000 in damages to an applicant for a job after the employer refused to hire her when she appeared for an interview wearing a headscarf, which she wore for religious reasons as a devout Muslim. The employer argued that it had a strict “Look” policy in order to insure a unified “preppy” brand image.
We also noted a Title VII filing by the EEOC against a Taco Bell franchise owner alleging that its termination of a devout Nazirite employee due to his failure to cut his hair was religious discrimination. Nazirites do not cut their hair as a sign of devotion to God. The employee had worked for Family Foods for six years without cutting his hair (in fact, he had not cut his hair since he was 15 years old) before the company tried to enforce its grooming policy that required him to cut his hair.
Occupational Health & Safety reported that Family Foods entered into a consent decree whereby it settled the case and agreed to pay the employee $27,000, and also to adopt a formal religious accommodation policy, to do appropriate annual trainings on Title VII, and also to post a copy of its anti-discrimination policy at all of its facilities.
These cases had a religious component, and an EEOC attorney commented that “No person should be forced to choose between his religion and his job when the company can provide an accommodation without suffering an undue hardship.”
Without some evidence that there are religious overtones regarding a dress or grooming policy, the results may be different.
In early 2012, we mentioned an article by Steve Giegerich of The St. Louis Post-Dispatch who reported about an employee with dreadlocks who had been working at a convenience store for four months who was barred from work because his hair violated the employer’s written policy which stated that hair must be “kept neat and clean…immoderate styles… such as corn rows, braids etc. must be approved by a supervisor … dreadlocks and mohawks are unacceptable.”
As Giegerich accurately reported, “policies on the personal grooming habits of employees land on the edge of state and federal employment discrimination laws,” and in all states but Michigan, employers have the right to terminate or suspend any employee who fails to comply with grooming guidelines.
He quoted an EEOC attorney who, agreeing with our analysis above, stated that “The baseline for evaluating grooming policies is to look at their overall burden on different groups of employees.”
Significantly, the reported story noted no sincerely held religious beliefs of the employee regarding his wearing of dreadlocks. Absent any such evidence, it would appear that his wearing of dreadlocks could be prohibited by the employer.