Under the D.C. Human Rights Act (DCHRA), personal appearance is one of 20 protected traits for people that live, visit or work in D.C. Personal appearance is defined as the outward appearance of any person, irrespective of sex, with regard to bodily condition or characteristics, manner or style of dress, and manner or style of personal grooming, including, but not limited to, hair style and beards. To flesh this out, the D.C. Office of Human Rights, which administers the DCHRA, issued enforcement guidance in September 2017 to provide an explanation of this less understood protected category. It clarified that a person may not be discriminated against based on the individual’s actual or perceived “personal appearance,” which means employers may not refuse to hire someone, for example, because the individual wears a head scarf or has dreadlocks. The guidance document even provides an illustrative example of this. It states that, if Michael has a beard and applies for a job as a receptionist of a business office, where the job announcement requires applicants to have 3-5 years of experience and Michael possesses 5-6 years of experience as a front desk receptionist, the business employer cannot refuse to hire or consider Michael, a qualified applicant, because of his beard.
But, there are some limits to this rule. As the enforcement guidance makes clear, an employer can establish requirements for cleanliness, uniforms or other standards as long as the established standard is for a reasonable business purpose (e.g., for maintaining the health and safety of all individuals) and applied uniformly to everyone. This is often referred to as the “prescribed standards” exception, and is successfully argued by showing the following three elements: (1) the existence of prescribed standards; (2) uniform application of the standards to a class of employees; and (3) a reasonable business purpose for the prescribed standards. So, in our example, if Michael is hired, in most cases, the business employer may require that Michael adhere to the company’s established grooming standards along with all other employees, unless Michael has a religious reason for his beard. Unfortunately, however, the enforcement guidance, while certainly helpful, may have oversimplified this exception.
In the real-life context, employers have asked some tricky questions. What qualifies as a “reasonable business purpose”? How specific or broad should prescribed dress and grooming standards be? And what if we do not enforce the standards all the time because we have a lax enforcement policy or inadvertently miss a case or two? While advice from legal counsel can provide tailored answers to the first two questions, what is nearly certain about the last is that, if an employer does not enforce its dress and grooming standards, it is opening itself up to major legal risk. This is because, as described above, uniform application is a required element for employers to claim the “prescribed standards” exception. Furthermore, personal appearance discrimination claims are subject to the McDonnell Douglas burden-shifting framework that we described in a prior post. That is, if a plaintiff alleges employment discrimination through the use of indirect evidence, the plaintiff must show that: (1) she is a member of a protected class; (2) she suffered an adverse employment action; and (3) the unfavorable action gave rise to an inference of discrimination. One way for a plaintiff to demonstrate that an unfavorable action gives rise to an inference of discrimination is to present evidence of disparate treatment. This is often done by showing that she was treated differently than similarly situated employees outside of her protected class. Accordingly, if an employer does not enforce its dress and grooming standards consistently, it makes plaintiff’s case stronger, which is at least one reason why strict enforcement of such standards is so crucial.
Furthermore, although only a small number of jurisdictions extend anti-discrimination protections to personal appearance, this area of law is growing and is often intrinsically connected to other protected classes. For example, the New York City Commission on Human Rights (NYCCHR) issued new guidelines in February 2019 stating that employer policies on grooming and appearance that target, limit, or otherwise restrict natural hair or hairstyles may be unlawful and could result in a penalty of up to $250,000 per violation. This is because NYCCHR determined that black hairstyles are an inherent part of black identity, and therefore, should be protected racial characteristics. The guidance notes that protections extend to the right to maintain “natural hair or hairstyles that are closely associated with their racial, ethnic or cultural identities.” While the guidelines specifically focus on black communities, the protections extend to other groups, including those who identify as Latin-x/a/o, Indo-Caribbean, Native American, Sikhs, Muslims, Jews, Nazirites, and/or Rastafarians.
So what can employers do to minimize their legal risk and ensure they do not run afoul of any anti-discrimination personal appearance laws? As noted above, advice from legal counsel will assist in determining whether an employer’s business purpose is reasonable under the law, and whether its prescribed dress and grooming standards are written in a way that best shield the employer from potential claims. This is often done through a review of the employer’s dress and grooming standards in its employee handbook. Typically, a broader set of standards with legally protected carve outs (e.g., for religious and disability accommodations, health and safety concerns, etc.) is advisable. It is also prudent to enforce the standards uniformly and consistently. Other concerns, such as keeping the standards gender-neutral, should also be considered.
]]>requirements on employers, in hopes of giving #MeToo a significant, lasting effect. So, what should employers in New York and California do now? And, given that these states are often at the forefront of labor and employment issues, how should employers outside New York and California prepare in case new laws are passed in their states?
New York’s New Anti-Sexual Harassment Laws
On April 12, 2018, New York Governor Andrew Cuomo signed into law the 2019 New York State Budget, updating the state’s sexual harassment laws. Among other changes, there are two key components under these laws. First, every employer in New York must establish a sexual harassment prevention policy. These policies should have already been adopted and provided to all employees by October 9, 2018. The New York Department of Labor and New York Division of Human Rights have established a model sexual harassment prevention policy for employers to adopt. But employers are not required to use this model, so long as their policy meets or exceeds the minimum standards of the model and set forth in the laws. Employers must distribute the policy to all employees in writing or electronically, and must ensure that all future employees receive the policy before they start work. Additionally, employers are encouraged to post a copy where employees can easily access it.
Second, every employer in New York is required to provide employees with sexual harassment prevention training. Again, the New York Department of Labor and New York Division of Human Rights have developed model training for employers to use. Though employers are not required to use the model, they must ensure that their training program meets or exceeds the minimum standards of the model, and includes the specific minimum requirements set forth in the laws. All employers are required to train current employees by October 9, 2019, and new employees should be trained as quickly as possible upon hire. In addition, all employees must complete the training at least once per year. There is no certification requirement for trainers, and employers may use third-party vendors to deliver the training.
Importantly, employers in New York should also be mindful of the mandatory arbitration and nondisclosure agreement prohibitions that went into effect this summer, on July 11, 2018. Under New York’s new anti-sexual harassment laws, a contract cannot contain any clause that requires mandatory arbitration to resolve sexual harassment claims. Unless one of the limited exceptions applies, such clauses will become null and void. Furthermore, with respect to nondisclosure agreements, the new laws have established a three-step process for memorializing the complainant’s preference for entering such an agreement. Under the new laws, a nondisclosure agreement is defined to include any resolution of any claim involving sexual harassment that would prevent the person who complained from disclosing the underlying facts and circumstances of the harassment. While the new laws generally ban such nondisclosure agreements, they are not prohibited where a complainant expresses a preference for entering into one.
Where the complainant asks for a nondisclosure agreement, the following process must be observed:
Importantly, this process requires the execution of two documents: (1) the agreement memorializing the complainant’s preference; and (2) the document(s) incorporating the preferred term or condition agreed upon. Suffice it to say, through policies, training, and contract clauses, the legal landscape has changed for employers in New York, and the effect of #MeToo and increased awareness of this issue are apparent.
New Anti-Sexual Harassment Laws in California
Similarly, in California, employers are also adjusting to new sexual harassment laws. For example, by January 1, 2020, employers with at least five employees must provide: (1) at least two hours of sexual harassment prevention training to all supervisory employees; and (2) at least one hour of sexual harassment prevention training to all non-supervisory employees. Training must be conducted within six months of the employee starting the position, and must be provided once every two years thereafter. Additionally, California has enacted a law regulating provisions set forth in settlement agreements related to sexual harassment, including nondisclosure clauses. Among other things, the new law prohibits a provision that prevents the disclosure of factual information underlying the allegation of sexual harassment upon which a settlement agreement is based. Such provisions entered on or after January 1, 2019, will become void as a matter of law and as counter to public policy.
But perhaps the most significant change has had less to do directly with sexual misconduct and harassment, and more to do with empowering women in the workplace. California has become the first state to require publicly traded companies to include women on their boards of directors. Signed by California Governor Jerry Brown on September 30, 2018, California Senate Bill 826 requires there to be at least one female director on the board of each California-based public corporation by the end of 2019. Also, depending on the number of board seats, companies may be required to have up to three female directors by the end of 2021. Companies are required to report their board composition to the California Secretary of State, and may be fined $100,000 for a first violation, and $300,000 for subsequent violations. Though not as directly linked to sexual harassment as the other laws discussed above, it will be interesting to see how an increase in the number of women on boards of directors in California will change things – at the state and national levels.
Thus, a year after the #MeToo movement went viral, we are seeing the movement change from something that caused greater awareness of an issue, to something that is being acted upon by way of law. Legal obligations are changing, and employers must be extra diligent to ensure compliance. As such, employers are advised to keep a pulse on current or proposed anti-sexual harassment and related laws and the extent to which their current policies and practices may be affected. Legal changes in California and New York tend to create models for other states, some of which may already have their own anti-sexual harassment laws in the works. Furthermore, employers in New York and California should update their sexual harassment policies and training programs accordingly, and make sure to distribute the policies and implement the programs as required. They should also develop a strategy to incorporate any changes that may affect contract provisions, such as nondisclosure and mandatory arbitration clauses. And, at least in California, publicly traded companies should start thinking about who will fill those female board director seats. While there are numerous other requirements pertaining to sexual misconduct and harassment that employers must be mindful of, states like New York and California have certainly begun to give the #MeToo movement a more significant and sustained impact.
About Conn Maciel Carey
Conn Maciel Carey is a boutique law firm focused on Labor & Employment, Workplace Safety, and Litigation. The clients we serve — from multi-national organizations to individuals — seek us out for strategic guidance ranging from day-to-day employment counseling to managing government regulatory investigations to leading complex litigation. What sets us apart is our special emphasis on workplace challenges, our creativity in crafting positive solutions, and our passion for serving our clients’ interests.