Cut Your Hair! Grooming Policy Under Fire

Big business or small, everyone has a certain image they want to present to their customers. For many, maybe most, that image is professional. That means dressing nicely, perhaps pantsuits or skirt-suits for women and suits or blazers and ties for men or some version of business casual for everyone. When it comes to grooming, the word neat springs to mind. Trimmed up and styled for women and trimmed up no lower than the collar for men.

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But, wait a minute. Can an employer’s grooming policy really dictate how a person presents, right down to hairstyle?

That answer to that is yes, but sometimes no.

Yes

A famous example of violating a grooming policy happened in Baseball a little more than 20 years ago. Baseball fans might recall back in 1991 the late George Steinbrenner, then owner of the New York Yankees, not only benched one of his players, Don Mattingly, but also fined him $250 dollars plus $100 dollars a day for every day he kept his hair long. A no-no in the Yankee organization. Donny Baseball was too shaggy for the owner’s taste. Steinbrenner wanted clean-cut players, and clean-cut players he was going to get. There was a long-standing grooming policy in place, and Mattingly’s contract stated that he would abide by team standards and rules.

Another, not-so-famous case occurred in 2013. The Equal Employment Opportunity Commission (EEOC), sued a company, Catastrophe Management Solutions (CMS) on behalf of an African-American woman, Chastity Jones, whose job offer was rescinded, because she wouldn’t cut her curl-locks, a variation of dreadlocks. Dreadlocks violated CMS’s grooming policy. In 2014, the suit went to the District Court for the Southern District of Alabama, Southern Division, where the EEOC lost. The suit was then bumped up to the Eleventh Circuit Court of Appeals where, again, in 2016, the EEOC and Jones lost.

No

Where a grooming policy doesn’t work is when it becomes so rigid, it doesn’t accommodate for protected characteristics, such as religion (think Title VII). Family Foods, Inc., a North Carolina corporation that operates a Taco Bell chain in that state, learned their policy went too far when one of their employees, Christopher Abbey, was fired, because he refused to cut his hair. He refused on the basis of his religion. A practicing Nazarite, he had not cut his hair since he was 15-years-old.

The termination violated Title VII of the Civil Rights Act of 1964, which requires employers to attempt to make reasonable accommodations to employees’ sincerely held beliefs as long as the accommodation doesn’t pose any undue hardship. Family Foods did not.

Undue hardship is, of course, undefined.

Family Foods paid a dear price for firing Abbey: $27,000 and other relief. They also had to adopt a formal religious accommodation policy and conduct annual training on Title VII and its prohibition against religious discrimination and retaliation in the workplace. They also had to post a copy of its anti-discrimination policy in all of its facilities.

Guidelines

The EEOC vs. CMS (Chastity Jones) case in the Eleventh Circuit Court, if read all the way through, does provide some guidelines that help employers navigate creating a grooming policy that won’t land it in court.

It states:

  • Title VII protects persons in covered categories with respect to their immutable characteristics, but not their cultural practices.
  • Discrimination based on the basis of black hair texture (an immutable characteristic), is prohibited by Title VII.
  • A hairstyle, even one more closely associated with a particular ethnic group, is a mutable characteristic.
  • Adverse action on the basis of a black hairstyle (a mutable choice) is not [unlawful].
  • A hiring policy that distinguishes on some other ground, such as grooming or length of hair, is related more closely to the employer’s choice of how to run his business than equality of employment opportunity.

So, the key word in grooming policy guidelines is mutable. If a characteristic such as a hairstyle can vary or be changed, you can ask for a change or make a change (termination, suspension, etc.). Just be certain the request for change doesn’t violate Title VII or other current labor laws.

Remember, there are federal, state, and local laws, so it’s always wise to check with a local labor attorney before making drastic actions.

Information provided on this site is not legal in nature. All reviews and opinions are submitted and based upon extensive research, experience in the human resources and labor relations fields, and are not, in any way, legal opinions.

 

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Cut Your Hair! Grooming Policy Under Fire

15 Employment and Labor Resolutions for 2015, part 2 of 3

In the second part of the series of resolutions everyone should make to keep their human resource department running smoothly — and legally, we have five more entries:

¬†6. Audit your wage-hour compliance. Unintentional overtime and wage-hour law violations have a new name in many quarters: “wage theft.” Federal and state agencies and plaintiff’s lawyers, sometimes encouraged by labor unions and their affiliate groups, are saying “show me the money” and finding it. In addition, the U.S. Department of Labor has said that it will attempt to narrow the white-collar exemptions this year. (Although the DOL says the changes will not be drastic, they are expected to be drastic). Among other things, a good wage-hour audit will include ensuring that lower-wage employees are getting at least the applicable minimum wage; that employees are not being required or “pressured” to work off the clock, or “winked at” when they do so; that the employees classified as “exempt” really are; and that any “independent contractors” really are (see also Resolution No. 1). Be sure that the review includes compliance with applicable state and local minimum wage laws, too. Many states now have a higher minimum wage than the Fair Labor Standards Act rate.

7. Update your EEO/no-harassment policies, and get that training done! In just the past year, the EEOC has taken the position that pregnancy and related conditions (including lactation) must be reasonably accommodated. The EEOC and the Office of Federal Contract Compliance Programs, which enforces the affirmative action laws that apply to federal contractors, both agree that “gender identity” is a protected category and that discrimination based on sexual orientation or gender identity violates Title VII. Do your policies reflect this? Do your employees know the new rules? Do victims of harassment and discrimination know that they have recourse?

8. Review your use of criminal background and credit information in hiring decisions. Many state and local laws prohibit employers from asking about criminal history on employment applications, and the EEOC has taken an aggressive position on the use of criminal or credit information in making employment decisions. You can still get this information, but are you getting it properly? If you find that an individual has a criminal or credit problem, are you making the required “individualized analysis” that takes into account, among other things, the nature of the conviction, the years that have passed, and the particular position for which the individual is applying? Did you grab some “canned” rules from a website, or are your rules customized to fit your industry, your workforce, and the people you serve?

9. If you’re a federal contractor, make sure you are up to date on all of the OFCCP’s new requirements. For example, the new requirement that you prohibit discrimination or harassment based on gender identity. The new minimum wage (applicable to some, but not all, federal contractors). The new scheduling letter and itemized listing. The proposed rule prohibiting employers from requiring that employees avoid discussing their pay. The rule requiring employers to “air their dirty linen” by disclosing certain violations of federal labor and employment laws. The new rule on disability discrimination/accommodation and veterans. (“Perform compensation analysis” is another good resolution if you haven’t done one lately).

10. Make sure you’re in compliance with the new injury and illness reporting requirements under the Occupational Safety and Health Act, which took effect on January 1. (Reported on this new rule back in September).

 Check back next week for the last installment of the 15 resolutions.

Disclaimer I am not a licensed attorney. My blogs are based on my own experiences, interviews (where credited), and loads of research and do not represent legal advice.

15 Employment and Labor Resolutions for 2015, part 2 of 3

15 Employment and Labor Resolutions for 2015, part 1 of 3

Now that the new year is well under way and we have all had an opportunity to settle in and organize ourselves for the coming year, I thought I should share some critical chores that need to be attended to keep you safely out of any legal twists.

Here are your first five resolutions as shared by Constangy, Brooks:

1. Make sure your “independent contractors” are really independent contractors. “Independent contractors” are under scrutiny by the Internal Revenue Service, the U.S. Department of Labor, the National Labor Relations Board, state and local agencies, plaintiffs’ lawyers, and union organizers. A mis-classification can cost you back taxes, back pay (including overtime), and back benefits, as well as penalties and interest. If you determine the manner in which an independent contractor performs his duties, including where and when the duties are performed, then the person is an employee.

2. Review your email policies. The NLRB recently found that employees generally have a right to use employer email systems during non-working time in support of union organizing and concerted activity. The Board’s decision means that many employer email use policies, as currently drafted, would probably be found to violate the National Labor Relations Act if an unfair labor practice charge were filed or a union tried to organize employees and argued that the employer’s email policy interfered with the organizing efforts. In light of the new “quickie election” rule that the NLRB issued last month, both union and non-union employers would be well advised to review their email policies and revise as needed. (The “quickie election” rule is scheduled to take effect on April 14, but the U.S. Chamber of Commerce and other employer groups, including the Society for Human Resources Management, filed suit on Monday seeking to block the rule.)

3. Review your policies on social media, confidentiality, and “courtesy.” The NLRB is going after garden-variety employer policies, taking the position that the policies interfere with and have a chilling effect on employees’ rights to engage in concerted activity. Among the commonplace policies under attack are those requiring that information about the company or employees be kept confidential; policies requiring that employees treat each other with courtesy, respect, and civility; and even some policies requiring that employees not disclose confidential and proprietary information. As with the email policies, a non-compliant policy could result in an unfair labor practice charge or the setting aside of an employer victory in a union election.

4. Review your severance agreements. The U.S. Equal Employment Opportunity Commission has taken the position that certain standard provisions in employee separation agreements unlawfully interfere with employee rights to bring or cooperate in the investigation of discrimination charges before the EEOC, and has filed suit against some employers using agreements with terms that the EEOC doesn’t like. One of the lawsuits has already been dismissed, but the court in that case did not make a ruling as to whether the EEOC’s position had merit. Even if you decide to take your chances with your current agreement, it’s not a bad idea to consider toning down provisions that you know the EEOC will find objectionable.

5. Review your leave policies and their administration. It’s not just the Family and Medical Leave Act anymore, although that’s enough in itself. You’ve probably seen that a number of states most recently, Massachusetts have enacted paid sick leave laws. Do your leave policies comply with the laws of the all the jurisdictions where you operate? And what do you do when an employee reaches the end of a sick leave or disability leave period? If you automatically terminate, then you could be in violation of the Americans with Disabilities Act as well as state or local disability rights laws.

This is a lot to take in, I know, but the reviews must be done by either your counsel (who specializes in labor law) or by an experienced human resource professional. Check in next week for another five HR resolutions.

Disclaimer I am not a licensed attorney. My blogs are based on my own experiences, interviews (where credited), and loads of research, and do not represent legal advice.
15 Employment and Labor Resolutions for 2015, part 1 of 3