Boardman Law Firm: Perspectives - LAWS AND CASES AFFECTING APPEARANCE

Appearance is an important issue in many workplaces. In general, employers have the right to control appearance. However, there are also legal issues to consider before you implement a dress code or any other appearance standard.

Title VII of the U.S. Civil Rights Acts of 1964. Prohibits discrimination on the basis of race, sex, national origin/ancestry, religion. Has been the basis for challenging dress codes which restrict racial, ethnic style or physical characteristics, and for challenging restrictions on religious garb. Requires reasonable accommodation. Basis for challenging sexually-demeaning uniform requirements or sexually-discriminating appearance standard.

Americans with Disabilities Act & Federal Rehabilitation Act. Requires reasonable accommodation of disabilities, including modification of uniform requirements or other appearance standards.

National Labor Relations Act. Protects workers’ rights to organize and express their interest in unions and to engage in concerted activity regarding the workplace. Can protect wearing of buttons, armbands, t-shirts, etc. expressing union labor messages.

Occupational Safety & Health Act (OSHA). Requires safety, including safe clothing and protective gear. Can override people’s preferences and even their rights to wear what they wish. Safety can, and should, cause employers to regularly review and change their clothing standards, as equipment changes, and as new and safer apparel becomes available.

42 U.S. Code §1983. Protects the public’s constitutional rights against government action. “Government actors” include public sector employers, schools, service providers, enforcement agencies, and recreational facilities; it may also include private contractors acting for the government. The “public” includes employees, students, patients, clients, individuals or businesses subject to government inspection or enforcement, as well as the general public. A government organization may have to show a “compelling interest” in order to override a persons constitutionally protected appearance choices. 42 U.S. Code §1983 has been used to challenge appearance restrictions under the following constitutional rights:

Equal Protection. Covers sex, race, religion, national origin/ancestry, as well as a variety of other issues of “difference.”

Freedom of Association. Group identity including EEO classifications and political or social identity (including union activity in public employment). This has even protected the wearing of “gang colors” and hate symbols.

Freedom of Religion. Protects religious affiliations, and religiously required or motivated garb and physical appearance (i.e., hair, facial hair, scarification, tattoos, etc.).

Freedom of Speech. Protects speech regarding matters of public concern, including “symbolic speech” such as clothing insignias, armbands, tattoos, or other body adornment which convey a message of public concern (not a purely personal expression).

Privacy/Liberty. Liberty protects against intrusion into highly private matters, such as what one does with their own body, i.e., tattoos, piercing, scarification, hair and facial hair, and degree of personal body care.

State Laws. A number of states have laws which cover appearance. State privacy statutes are the most common. These balance the employer’s right to dictate appearance against over-intrusiveness into one’s private rights.

State or local EEO laws cover much the same ground as the Federal Civil Rights laws. Some also cover discrimination on the basis of “personal appearance.” These usually focus on hair and facial hair issues but can also cover tattoos, piercings, jewelry and style of dress.

Warning Laws. Some states have enacted “notice” requirements. Job applicants must be informed of any appearance rules, (especially those involving hair, facial hair, fingernails or other “bodily trait” factors) before they start work.

The first notable case involving work attire was EEOC v. Sage Realty Corp. in 1980 at the time when courts were first recognizing sexual harassment as a form of discrimination. In that case, the employer required the lobby attendant to wear a sexually-revealing and provocative uniform which subjected her to ongoing harassment. She was fired when she informed management of the harassment and refused to wear the uniform any longer. The court ruled that “the uniform requirement bore no relationship to her job duties but was simply an onerous and irrational condition imposed upon her, which constituted sex discrimination.”

Since the Sage Realty case, there have been a number of decisions involving attire and employee appearance policies. The following examples illustrate several areas of controversy.

A waitress was fired for refusing to wear the new “hot pants” uniform. The employer claimed that it hired waitresses to be “entertainment packages” for male customers. The federal court ordered rehire, back pay and a less sexually-revealing uniform. EEOC v. Holiday Inns (D.C. Mass., 1983).

A restaurant paid $52,000 to three female servers who alleged that they were required to wear “demeaning” uniforms rather than the tuxedo-like uniforms worn by male bartenders and servers. EEOC v. Jozac Corp. (N.D. Ohio, 1999).

Female firefighters forced to wear male clothing. A fire department lost a sex discrimination case because of refusal to provide proper equipment to female firefighters. In spite of repeated requests, the department persisted in ordering only male firefighting clothing. The evidence in the case showed that properly-fitting gear is essential to mobility in the dangerous job of firefighting and that male clothing does not properly fit most women. The evidence proved that the female plaintiffs suffered burns and injury due to the improperly fit male-designed gear. There were female firefighter uniforms readily available on the market, but the department repeatedly failed to order any. Wedow v. Kansas City (8th Cir., 2006).

Employer Can Require Female Drivers to Wear Pants. The court rejected an employee’s “freedom of expression” and “cultural values” arguments for wearing a dress. The employer had a rational basis in safety and efficiency for requiring trousers. Further, “an employee’s liberty interest in choice of apparel is far from a fundamental right.” Zalewska v. County of Sullivan (2nd Cir., Dec. 2002). [Be aware that a religious requirement for wearing certain clothing carries more weight and can override an employer’s dress code. Had religion been the basis, the case could have turned out the opposite and required the tougher “compelling interest” instead of a “rational basis”test to override the Employers rights.]

Casino Can Require Female Employee To Wear Make-Up and Style Hair.A bartender was fired for refusing to wear make-up and style her hair according to a casino’s dress and appearance code. She sued, claiming that male employees were not required to wear make-up or a similar hairstyle. The court rejected the argument, holding that Title VII allows differing standards for men and women based on general societal or customary fashion differences for the genders, as long as the “burdens” on each gender are relatively equal. The female standard of make-up and teased, curled or styled hair was a similar burden to the male standard of short, well-groomed hair, trimmed facial hair, trimmed nails and no make-up. Jesperson v. Harrah’s Operating Co. (9th Cir., 2004).

Male Ordered Not to Wear Earrings; Different Gender Standards Can be OK. A male optometrist was ordered to not wear an earring at work. He sued, alleging sex discrimination, since female employees could wear earrings. The court dismissed the case based on the grounds that Title VII allows “minor differences in personal appearance regulations that reflect customary modes of grooming . . . grooming codes do not have to be entirely gender neutral.” Kleinsorge v. Eyeland Corp. (E.D. Pa., 2000), also citing Knott v. Missouri Pacific Railway (8th Cir., 1975).

Weight Standards are Discriminatory for Flight Attendants. United Airlines settled a sex discrimination class action for $36.5 million. United used different standards for male and female flight attendants. Females had to weigh 14 to 25 pounds less than male co-workers of the same height and age. Frank v. United Airlines Inc. (N.D. Cal., 2004). [United's bankruptcy proceeding may result in much of the $36.5 million being eventually discharged.]

Cruzan v. Minneapolis Public School System (D. Minn., 2001). A female teacher’s Federal Title VII religious, privacy and hostile environment suit. The court held that she had no grounds to complain that the District allowed a transgendered male co-worker undergoing a gender switch to use the women’s restroom. The court concluded that there were other convenient restrooms Cruzan could use.

Goins v. West Group (Minn. S.Ct., 2001). In a case decided under the Minnesota Human Rights Act, a male employee undergoing a sex change was not allowed to use the women’s restrooms, due to protests from female employees. A unisex restroom was available. The employee quit and sued. The court ruled that an employer could force a “biological gender” restroom rule, and the law did not require accommodating the employee’s sexual “self image.”

Beards. EEOC v. Federal Express Corp., (2001). Federal Express entered into a consent decree to modify its Appearance Policy to allow beards or particular hairstyles if an employee’s sincerely-held religious belief is at issue. The EEOC sued on behalf of a Muslim employee discharged for refusing to shave due to religious requirements. The company also paid $140,000 in damages.

Dreadlocks. A corrections officer successfully challenged the dress code because of unequal enforcement. He was disciplined for his religious-based refusal to change his hair style. However, both a Sikh officer and a Jewish officer were allowed exceptions to the code for their religious needs. He filed under Title VII and the Equal Protection Clause of the Constitution using 42 U.S. Code §1983. Booth v. Maryland (4th Cir., 2003).

Head Covering. American Airlines paid $60,000 and hired a Muslim plaintiff who it had refused to hire as a ticket agent because of her commitment to wear a hijab (head covering). Title VII requires reasonable accommodation of religious practices, including modification of company dress codes or uniform requirements. EECO v. American Airlines (N.D. Ill., 2002).

On the other hand, a company had a rule against head gear indoors in a certain facility. A Sikh employee claimed a religious requirement to wear a turban at all times. The company offered him six alternative jobs (two of which had higher pay), which he refused. He was fired. The court found no Title VII religious discrimination. The court ruled that an employee is not entitled to the accommodation of his choice, just to a reasonable accommodation. Bindi v. UAL Corp. (N.D. Ill., 2002).

Religious Jewelry Is Protected. A library worker has the right to wear a cross on a necklace, as a sign of her faith. Both Title VII and 42 U.S. Code §1983 (public sector employment) protect reasonable accommodations and religious rights of employees. This allows a certain amount of expression of one’s religion at work, as long as one is not using it to interfere with others, and one is not engaging in “promotion” of religion in the workplace. Draper v. Logan County (W.D. Ky., 2003).

A school district was ordered to reinstate a teacher’s assistant, pay her legal fees and amend its dress code. Her unobtrusive wearing of a cross necklace was protected by Title VII and the First Amendment of the Constitution. Nichol v. ARIN Intermediate Unit 28 (W.D. Pa., 2003).

Police Department can Ban an Officer’s Cross on Uniform. A court rejected a police officer’s Title VII and First Amendment religious expression challenge to the department’s appearance code, banning his wearing of a cross. The court held that a religious symbol takes on “a different cast when viewed on the context of a police uniform.” The department had a compelling interest in avoiding the appearance of endorsing religion, and a police officer’s uniform “is not a public forum for freedom of speech.” (The dress code banned all pins on uniforms, but not on officers who wore civilian clothes to work.) Daniels v. City of Arlington, Texas (5th Cir., 2001).

Body Piercer Loses Religious Accommodation Case. An employee claimed that membership in the Church of Body Modification required her to wear various facial piercings at all times. The employer had a dress code forbidding most visible piercings, but offered the accommodation of allowing clear plastic retainers or band aid covering of the piercing while on duty. The employee refused, left employment and sued for religious discrimination. The court ruled that the accommodation was a reasonable offer. Covering piercings did not impinge on the employee any more than wearing clothing to cover tattoos (which the employee also had, but she did not claim that she was religiously required to reveal her body at all times). Cloutier v. Costco Wholesale (D.Mass., 2004).

KKK Member Could Be Required To Cover Racially Offensive Tattoo At Work. The court balanced personal rights against offensiveness to others and ruled that an employer could require an employee to cover a racially offensive tattoo to help prevent a hostile work environment. The court ruled that even if the tattoo had been a “religious symbol” (“Church of the American Knights of the KKK”), the employer could still require the employee to cover it because religious freedom does not include the right to overtly offend others in the workplace. Swartzentruber v. Gunite Corp. (N.D. Ind., May 22, 2000).

Beards and Safety. A no-beard requirement for firefighters was upheld as a valid safety rule, since facial hair interfered with a good fit on respirators. Though it had an adverse impact on African American firefighters due to pseudofolliculitis barbae (a skin condition predominantly affecting African Americans), the safety issue was a valid reason to enforce the rule. Fitzpatrick v. City of Atlanta (1993); Vernon v. Berkeley (Cal. Ct. App., 2006).

Hair Style. In Adakai v. Front Row Seat, Inc. (10th Cir., 1997), Native American employees wore their hair in a traditional, long Navajo style. The employer discharged them for “scuzzy hair.” The court found a violation of Title VII.

Plaintiff Could not Establish “African Style” Appearance. A plaintiff claimed she was fired for wearing “African style” clothing. (She was replaced by a more conservatively dressed African American employee.) In dismissing her Title VII case, the court found no direct evidence that clothing was the motivation for her discharge. Further, she could not establish that her personal dress style was shared by enough people to constitute a racial or ethnic style; she could not show even a sufficient “subset” of African Americans who had adopted her particular style of clothing as a symbol of group identity. McManus v. MCI Communications (D. DC, 2000). In Hollins v. Atlantic Co. (N.D. Ohio, 1997), the court reached a similar decision, finding that “extreme hairstyles” were not protected under Title VII.

Fragrance-Free Environment was not Reasonable. As an accommodation for chemical sensitivity, an employee requested a “fragrance-free environment.” The employer could eliminate other employee’s perfumes and smoke, but it could not create a “fragrance-free” workplace. The court ruled that in order to do so the employer would have to “police” customers and visitors to ensure they did not wear scents and would have to eliminate other common agents like cleaning supplies. This was not reasonable. Montenez-Denman v. Slater (6th Cir., 2000).

Weight as a Disability. In Spiegel v. Schulman Karate (E.D. NY, 2003), a 5'8" 300-pound karate instructor was allowed to pursue an ADA case over his termination. Weight alone has generally not been seen as a disability under the ADA, however, Mr. Spiegel showed that his weight was due to a hormonal imbalance condition. He also showed that he was regularly the highest rated instructor among the company's 35 karate schools, but was criticized for his weight gain after he stopped taking ephedra (a supplement that can be dangerous). Spiegel created enough question about the termination to proceed to trial.

OTHER PROTECTED EXPRESSIONS

Must Bargain Over Dress Code. Even though union members were part of the committee which drafted a new dress code, the employer still had a duty to bargain with the union before implementing the new rules. (The code prohibited nurses from wearing artificial fingernails, dictated uniform colors and required employees to pay for their uniforms.) In re Crittenton Hospital (NLRB 2004).

Union T-shirt Was Protected. A company violated the Taft Hartley Act when it removed an off-duty employee from its store and gave discipline for wearing a union t-shirt encouraging employees to unionize. The NLRB found this to be an unfair labor practice in restraint of concerted activities. In re Wal-Mart Stores, Inc. (NLRB 2003).

Employee Has Right To Wear “Union-Yes” Pin. A public hospital violated a pro-union employee’s freedom of speech by disciplining him for wearing a “union-yes” pin during a union organizing effort. The union issue was a “matter of public concern” and fell within the First Amendment protection. The hospital could show no “compelling interest” in banning the pin, and the dress code used to give the discipline was not uniformly enforced (i.e., people were not disciplined for wearing other sorts of pins, such as those supporting their local sports team). Communication Workers of America v. Ector County Hospital Dist. (5th Cir., 2004).

Employee Has Right NOT To Wear Union Insignia.The National Labor Relations Act protects both a worker’s right to organize and the right not to participate in union activities. Even though a collective bargaining agreement (CBA) covers all employees, even those who wish not to be part of a union, the CBA cannot mandate the wearing of union insignia by those who disagree. A provision that required Communication Workers of America insignia to be worn on the company uniform could not be imposed on the employee who objected. Lee v. NLRB (4th Cir., 2005).

Pro-union T-shirt and teacher’s speech not protected. A teacher did not have the right to wear a pro-union T-shirt stating “working without a contract” in the classroom. The teacher also publicly berated other staff who did not wear pro-union clothing. Though the clothing and behavior fell within the scope of the First Amendment and labor laws, the in-class wear and verbal accosting of others combined to be disruptive enough to education to outweigh those rights and warrant non-renewal of the teaching contract. Monte v. Westward Heights School District (S.D. Mich. 2006).

School Can Ban Confederate Flags On Student Clothing. A school had a “compelling interest” to ban confederate flag patches and clothing. Though the action infringed on students’ freedom of expression, the school’s interest in quelling racial tension outweighed the students’ rights. Denno v. School Board of Volusia County, Florida (M.D. Fla., 2000).

Confederate Flag Tool Box. A white worker refused to remove confederate flag stickers from his tool box after an African American worker complained that the decals were offensive. The white worker was fired, and he then sued. The court ruled that a private employer does not have to allow “freedom of expression” in the workplace. The company did not try to interfere with the worker’s off-duty rights, and it had no duty to “indulge” employees’ political expressions at work, especially where they were offensive to others. Dixon v. Coburg Dairy, Inc. (4th Cir., 2003).

“Confederate-Southern American” Is Not A National Origin. A security guard was fired for refusing to remove Confederate flag stickers from his lunch box and the truck he parked on company property. He then sued for Title VII-National Origin discrimination. The court refused to recognize the claim as valid, holding that a regional political group within a nation does not qualify as protected National Origin. Storey v. Burns Int’l. Security Services (3rd Cir., 2004).

Sam’s Club, Inc. v. Madison EOC (Wis. Ct. App., 2003). The Madison, Wisconsin EEO Ordinance prohibits employment discrimination based on “physical appearance.” Sam’s Club was sued when it enforced a rule prohibiting wearing facial jewelry on the job. The court found that Sam’s Club had a policy of “conservative non-flashy warehouse clothing.” The court ruled that an employer’s desire to have a particular image could constitute a “reasonable business purpose” which would allow it to set a particular dress code, including banning facial jewelry. Sam’s Club presented tangible evidence as to its non-flashy image efforts and of uniform enforcement of the no-facial jewelry policy.

No Gum - No Food - No Sportswear. An employer’s ban on gum, food and beverages in the work area was reasonable due to the installation of “sensitive equipment” which could suffer damage from food items or crumbs. (Breath mints and hard candies were ruled not to be likely to pose a danger of contaminating the equipment.) The arbitrator also upheld a ban on sweatshirts, ball caps, sweat pants, shorts, etc., due to the company policy on “professional image.” In re Valley Communication Center (2004).

No Jeans In Lobby. A hotel’s professional image policy was upheld for employees who worked in the lobby (no jeans, sneakers, t-shirts or sweatshirts). In re Hotel Bancroft (2004).

No Shorts In Classroom. A professional image policy barring teachers from wearing shorts in class was also upheld. In re Toledo Board of Education (2004).

Restaurant Cannot Deduct from Tipped Employees. A restaurant deducted uniform laundering charges from the wages of the wait staff because it required them to wear clean, pressed uniforms each day. The deductions at times resulted in a sub-minimum wage take-home pay. This violated the FLSA. The Department of Labor also stated that any “voluntary agreement” by the employee for the deduction was illegal; it was simply an inherently coercive “kickback scheme” to benefit the employer at the expense of low wage workers. “No portion of an employee’s tips can be kicked back to the employer to cover costs of uniforms or laundering.” Wage and Hour Opinion FLSA 2006-21 (2006).

Holding Pay For Non-Return. Many states prohibit holding or deducting from final wages for non-return of uniforms or other company property.