Tuesday, November 17, 2015

Get A Haircut

A few days ago, I was looking at pictures of businessmen from the 1970s, and couldn’t help but chuckle. Businessmen wearing suits sported long, flowing hair, full mustaches, and sideburns down to their chins. I couldn’t help but be amazed that these businessmen could sport these types of hairstyles without getting in trouble from their employers. What would happen today if an employee came to work with a 1970s-esque hairstyle? Could his employer tell him to cut his hair?

The answer is yes, although, as explained below, there are some important exceptions. Private employers enjoy a wide legal berth when it comes to dictating the appearance of their employees. For private employers, there is no federal or state law that explicitly prohibits an employer from requiring employees to sport particular hairstyles. Courts have upheld policies prohibiting employees from wearing dreadlocks, mohawks, or even having long hair. 

However, before you give that employee with an annoying hairstyle a pair of scissors, you should be sure that you are not violating any law protecting employees from religious, racial, and gender-identity discrimination. 

Title VII of the Civil Rights Act of 1964 prevents employers from discriminating against employees on the basis of, among other things, race, religion, and gender. An employer should be sure that requiring an employee to cut his hair does not inadvertently discriminate against that employee on one of these bases. For example, one employer fired a male employee for violating its dress code by having long hair. The employee sued, claiming that he wore his hair long because of his Nazirite religion, and his firing was illegal religious discrimination. The employee ultimately won a $27,000 judgment. Other employers have found themselves in trouble for requiring employees to remove turbans, hijabs, or yakamas. Therefore, make sure that your employee does not have a hairstyle for a religious reason before you tell him to get rid of it.  

Employers should also be sure that their policies apply equally to people of all ethnicities. Banning only hairstyles used by a particular racial group might lead to a violation of Title VII. For example, banning corn rows, afros, and dreadlocks, but no other hairstyles, could make an employer liable for discrimination against African-Americans. 

Employers should also be sure that they do not discriminate on the basis of gender identity when they tell an employee to cut his hair. Many states, including Illinois, prohibit discrimination based on gender identity. Therefore, an employer should be sure that a male employee is not transitioning to a female before telling him to cut his hair. 

Employers should also be sure that their hairstyle policies do not discriminate against an employee based on a disability. So, if an employee comes to work with no hair, and the employer believes that this is inconsistent with the image or brand of the organization, it should be sure that the hair loss is intentional and not the result of a disability. 

Of course, public employers are more constrained in how they can regulate the appearance of their employees as public employees enjoy certain First Amendment protections. Nevertheless, as we recently reported in the failed claim of Chicago Police Officers who alleged that a policy requiring that they cover tattoos while representing the Department, safety concerns or an overriding need by the employer to require a certain appearance (remember, in the tattoo case, the employer was able to persuade the court that police officers needed to have a uniform appearance and distinguishable from the general public), will support a dress code that meets those goals.. 

As we have discussed, private employers have a good amount of leeway in enforcing dress codes or other policies requiring employees to exhibit a particular appearance. Public employers with a safety or operational need to limit certain dress or appearance also enjoy some leeway. In enforcing these policies, though, it is important for employers to avoid inadvertent discrimination on the basis of race, religion, disability, gender identity, and sexual orientation.  A  simple statement in any dress code or appearance policy that allows employees to request relief based on these protected characteristics should help ensure compliance with the law.