From Employment Law – Business Management Daily
Employers may create policies that require employees to maintain a neat, clean, professional appearance. But as straightforward as the issue seems to be, grooming standards can create problems for employers. For example, employers can not apply a grooming policy that fails to accommodate employees’ religious needs or that places undo requirements on transgender people.
Employers may impose rules governing dress and grooming that include different standards for men and women, as long as the policy does not disproportionately burden either sex. For example, a female bartender who sued when she was fired for refusing to wear required makeup failed to persuade the 9th Circuit Court of Appeals that the grooming policy was particularly onerous. However, in another case, a job applicant brought a claim against a newspaper, claiming it refused to hire him because his hair was long. At the same time, he said, the paper did not impose similar limits on how long female applicants could wear their hair. The newspaper claimed it required employees who would come in contact with the public to be neatly dressed and groomed in accordance with the standards customarily accepted in the business community. The 5th Circuit held that the grooming code requiring different hair lengths for male and female job applicants treated applicants differently as a result of a sex stereotype. The court remanded the case, asking the newspaper to justify its grooming code as a bona fide occupational qualification.
If employees dress a certain way because of sincerely held religious beliefs, employers may be obligated to accommodate the dress practices, depending on whether the accommodation would cause an undue hardship. For example, the EEOC filed a lawsuit against Red Robin Restaurant when it fired a waiter for refusing to conceal wrist tattoos he claimed symbolized his devotion to his religion. The court rejected the restaurant’s argument that violations of its no-tattoo policy would hurt the company’s “wholesome image.” Conversely, when a Costco cashier who claimed that her religion required the display of an unusual ear piercing sued the retailer for discrimination, the court ruled in favor of Costco. The court found Costco met its burden of showing it had offered the employee a reasonable accommodation: cover the piercing during work hours. On the other hand, an accommodation offered to a Muslim employee to remove her hijab—the traditional headscarf many Muslim women wear—while she served clients was found not to be reasonable. Absent a bona fide safety concern, an employer probably could not prohibit a Muslim woman from wearing a hijab.
A hijab was at the center of a 2015 landmark case decided by the U.S. Supreme Court. In EEOC v. Abercrombie & Fitch, the Supreme Court ruled that excluding an applicant from being offered a job because she showed up at her interview wearing a head scarf violated Title VII’s prohibition against religious discrimination. The Supreme Court said that was true even though the applicant never requested an accommodation nor even mentioned her religion.
State law increasingly recognizes discrimination regarding transgender issues as a protected category. Approximately 13 states and numerous cities and counties explicitly protect gender identity or have been involved in court cases in which rulings recognized gender identity as a protected characteristic.
Some federal courts have recognized transgender discrimination as a form of sex stereotyping or sex discrimination.
Transgender discrimination has also been recognized by some federal courts as a form of sex stereotyping or sex discrimination. Several cases in the 3rd Circuit have tested whether stereotypes about how males and females present themselves is sex discrimination and have concluded that it is covered under Title VII. So, what does this mean for an employer that enforces gender-based grooming standards and has an employee whose characteristics are considered atypical of his or her birth gender?
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. The transgender employee should be permitted to dress in accordance with the standard appropriate to his or her gender identity. As shown by the Smith case, the bias of a customer or co-worker would not be a valid reason to discriminate. As with any employment rule, employers that decide to impose grooming or dress standards that are not gender neutral should make sure that such a policy is motivated by legitimate business interests and not intended to disadvantage any particular group of employees.