Employers Can Discriminate!
By Grace Horoupian and Matthew Sgnilek
Thursday, 3rd November 2011
For some employees who can't figure out why they are not getting that promotion, the answer could be as simple as looking in the mirror; grooming and personal appearance are playing an ever-increasing role in workplace raise and promotion decisions.

A recent CareerBuilder.com survey listed the following as the top reasons that would make an employer less likely to offer an employee a promotion:
  • Piercings
  • Bad Breath
  • Visible Tattoo
  • Wrinkled Clothes
  • Messy Hair
  • Casual Dress
  • Too much perfume or cologne
  • Too much makeup
  • Messy office or cubicle
  • Chewed fingernails
  • Too suntanned
Is not giving an employee a promotion because of their bad breath or fingernails illegal? Some employees might think so, but generally speaking, the answer is "no." You are legally free to deny that new corner office to employees because they have bad breath or dress as though they just came from the beach. This is one of those areas where employers actually can discriminate, because discrimination based on such characteristics does not violate Title VII – unless issues of race, religion, sex or national origin are intertwined.

Employers do have the option of regulating workplace grooming and appearance. But from our experience many are sometimes reluctant to exercise this right because everyone "knows" that discrimination is unlawful. The truth is you have a lot of control over the dress and appearance of your employees. The key is to carefully draft and consistently enforce a reasonable dress code.

Doing It Right

There is no legal requirement for a dress or appearance policy. Yet, having such a policy in place before a tattoo, nose ring, haircut, or head covering becomes an issue allows you to defend claims of discrimination. More importantly, a well-written policy can help protect a company's public image, promote a productive work environment, comply with health and safety standards, and even prevent claims of unlawful harassment. Having such policies in place also helps better ensure that highly qualified employees are not overlooked, albeit legally, for a promotion because they are permitted to come to work with messy hair or wrinkled clothes.

A dress and appearance policy based on business needs that is applied uniformly will generally not run afoul of employees' seemingly endless civil rights. Any appearance policy should be based on justifiable business reasons that do not have a disproportionate effect on particular segments of the workforce, particularly those in a protected category. Of course, as with all employment policies, you must ensure that such policies are applied consistently and fairly without regard to an applicant's or employee's race, sex, national origin, religion, color, disability, age, or any other protected status.

Employees are becoming wise to these issues and seeking to challenge grooming- and dress-based decisions by tying them to protected categories such as religion and disability, with some degree of success. As an example, some courts have held that obesity can be considered a disability which calls into question the viability of making employment decisions because of an employee's weight. In fact, Michigan even prohibits discrimination in employment based upon weight by state statute. Other courts have found that no-beard policies discriminate against men who wear beards for religious reasons. It's important to be wise to these risks and be certain to draft their appearance and grooming policies so that they do not encroach upon a protected category.

When faced with grooming- and dress-based cases, courts and arbitrators will balance an employee's desire for self expression with an employer's right to enforce a reasonable dress code necessary to protect the company's image. If done correctly, in most cases the employer's reasonable dress code will prevail. Case in point, in an arbitration decided several years ago, a woman of Mayan descent was required to cover up a nose ring she wore to work in her position as a hospital receptionist.

The employee viewed the nose ring as part of her Mayan cultural heritage whereas the hospital viewed it as a violation of its dress guidelines prohibiting extremes in jewelry. The arbitrator agreed with the employer. He viewed the employer's requirement that the nose ring be covered as reasonable because as a receptionist the employee was the first person to make an impression upon hospital visitors.

The case highlights that courts and arbitrators continue to support an employer's right to enforce a reasonable dress code as long as it is does not encroach upon a protected activity and can be tied to reasonable business needs.

For more information contact the authors: msgnilek@laborlawyers.com, ghoroupian@laborlawyers.com or 949-851-2424.

Grace Horoupian is a partner in the Irvine office. Her practice is focused on representing employers in a variety of employment cases, including claims for civil rights violations, harassment, discrimination, retaliation, wrongful termination, wage and hour claims, ADA and ADEA violations, unfair business practices, misappropriation of trade secrets, and class action disputes. Grace represents employers in both state and federal courts as well as before state and federal agencies, such as the Equal Employment Opportunity Commission, the California Department of Fair Employment and Housing, and the Division of Labor Standards Enforcement. Grace also provides preventive counseling and frequently presents seminars and workshops on employment issues, including AB 1825 Sexual Harassment and Discrimination Training, to executives, supervisors, managers, and human resources professionals. She serves as the Vice Chair and General Counsel of the Huntington Beach Chamber of Commerce.

Matt Sgnilek is an associate in the Irvine office. His practice is focused on representing employers in all aspects of employment litigation, including claims for sexual harassment, discrimination, retaliation, and wrongful termination. Matt represents employers in both state and federal court as well as in arbitration. He has appeared before several state and federal administrative agencies such as the Equal Employment Opportunity Commission, the California Department of Fair Employment and Housing, Unemployment Insurance Appeals Board and the Division of Labor Standards Enforcement. In addition to his litigation practice, Matt provides preventive counseling and training to help clients avoid employment claims and litigation and frequently presents at seminars and workshops on employment issues.

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