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.
]]>(Sesame) Seeds Of Dissension: Fast-Food Employees Want To Wear Their Buttons
After the Burgerville employees refused to remove the buttons, they were sent packing for the day. In a statement responding to the incident, the company cited to its verbal, unwritten policy against “personal buttons,” and subsequently instated a written dress code, banning the politically charged buttons and reiterating its need to protect its public image.
In response to the button incident, the “Burgerville Workers Union” (BVWU)—the first federally recognized fast food union in the United States, and an active one at that—geared up for battle, indicating that it would pursue legal options. Despite the company rescinding the policy the very next day and paying backpay to those employees who were sent home, the union solicited customers to boycott the chain and encouraged its workers to go on strike, picketing three of Burgerville’s locations—which incidentally occurred on National Cheeseburger Day, September 18.
Pinning Down What “Special Circumstances” Justify A Button Ban
Burgerville’s button issue is not the first time that burger-chain employers have faced politically motivated buttons at work. In April 2015, In-N-Out employees in Austin, Texas sported “Fight for Fifteen” buttons on their uniforms, in solidarity with the push for a $15 minimum wage. There, like Burgerville, the employer asked employees to remove the buttons, as they violated In-N-Out’s policy against non-company related pins, buttons, and stickers.
In-N-Out’s button-as-political-protest issue had so much traction that, in May 2017, the National Labor Relations Board (NLRB) weighed in on the issue.
When the agency analyzed In-N-Out’s policy, it rejected the “special circumstances” which authorizes companies to ban union apparel and insignia in order to maintain restaurant consistent image. The NLRB was unconvinced, ruling that any uniform policy forbidding employees from wearing buttons, pins, or stickers on one’s uniform violated Section 8(a)(1) of the National Labor Relations Act (NLRA), which makes it an “unlawful labor practice” to interfere with employees’ exercise of their Section 7 rights (to unionize or collectively bargain) under the NLRA.
The issue of whether an employer can regulate politically charged apparel and insignia has been festering for years, in and out of the fast-food arena, and a sampling of several recent cases reveals that the issue remains a challenge for employers to resolve:
What Can Employers Do?
In determining how you should respond should this issue arise in your workplace, the first thing to know is that, regardless of whether an employer is unionized or not, the NLRA applies to almost all private employers. And given the current divisive political climate, displays of political speech in the workplace are not uncommon and could make an appearance at your worksites. So it’s more important than ever for you to understand the rules governing these kinds of situations.
The NLRB has articulated three limited circumstances under which employers may place limits and prohibitions on the clothing choices of their employees while at work. These circumstances are:
The burden is on the employer to show the special circumstances exist, and that the prohibitions are narrowly tailored to the circumstances at issue. As the aforementioned cases make clear, this is a highly fact-intensive inquiry, and employers must set forth evidence in support of its “special circumstances.”
While you can still regulate what goes on in your workplace, the policies you enforce cannot run afoul of Section 7 of the NLRA. Therefore, best practices would include having a uniformly enforced, well-documented dress code or other policy that articulates your image or particular safety concerns, if relevant. Given the presumption of at-will employment in most states, you can terminate your at-will employees for any lawful reason.
You should be mindful that, while political affiliation is not a federally protected class, states like California provide protections for employees against discrimination based on political activity and affiliation. If an employee is wearing a button, it is also critical that you avoid a harsh rebuke, whether suspending employees, sending them home, or terminating them, as such an overreaction could be evidence of illegal bias. If buttons are unavoidable, it may also be helpful to cap insignia at one pin/button a person, a la Starbucks.
Wrapping Up
While it remains to be seen what will become of the Burgerville button incident, you would be best served to approach any type of insignia with a cautious, pragmatic attitude, and to consult with your labor attorney before proceeding with a new policy or response to a button in the workplace.
For more information, contact the authors:
Setareh Ebrahimian | SEbrahimian@fisherphillips.com (703.682.7096)
Setareh Ebrahimian is an associate in the firm’s Washington D.C. office. She represents employers in a wide range of employment matters in state and federal courts. Setareh defends employers facing claims of race, gender, national origin, age, religion, pregnancy and disability discrimination, harassment and retaliation, purported violations of leave, wage and hour laws, enforcement of non-competes, as well as claims arising under local and state law. She also represents companies facing investigations by the Equal Employment Opportunity Commission and related local and state agencies.
In addition to litigating, Setareh advises and counsels employers on matters involving personnel policies, hiring, training, employee handbooks, discipline, termination, reasonable accommodations, protected leave, reductions in force, employee complaints and internal investigations, as well as regulatory compliance.
Danielle Krauthamer | DKrauthamer@fisherphillips.com (213.330.4472)
Danielle Krauthamer is an associate in the Los Angeles office. In her practice, Danielle advises companies of all sizes in an array of labor and employment matters, including claims of wage and hour violations, retaliation, wrongful termination, and discrimination.
Prior to joining Fisher Phillips, Danielle gained valuable experience as a judicial law clerk for the Honorable Ronald S.W. Lew at the United States District Court for the Central District of California, managing the judge’s docket in one of the busiest districts in the nation. While there, she had significant exposure to civil litigation cases across a wide range of subject matter.
]]>Policies Should Cover Everything…
A policy should address all aspects of employee dress and appearance and explain that theemployer’s professional atmosphere is maintained, in part, by the image it presents to the public and its guests. The policy should require that all employees present a professional, neat, and well-groomed appearance. The policy should address good hygiene, uniform requirements, and proper safety-related attire (such as closed-toe shoes).
Tattoos, body piercings, gauges and other forms of self-expression have become commonplace and society seems to have become more accepting of individuals’ choices for self-expression. However, some of these forms of self-expression may not be appropriate for a customer-service industry such as the hospitality industry.
Although some are hesitant to do so, employers can legally set limits on self-expression in the form of tattoos, piercings, and extremes in dress, jewelry, and hairstyles. Some employers have found a zero-tolerance policy too strict and have adopted less stringent policies.
Many employers now permit body piercings or tattoos within certain limits, such as limits on the number, size, placement, or visibility of the tattoos, or limits that prohibit the display of any racially offensive, sexually explicit, violent, or otherwise offensive tattoos. In the final analysis, your policy should clearly articulate what is permitted and what is prohibited in your workplace. Once you have articulated your policy, enforce it consistently.
…But Allow Some Exceptions To Peek Through
The Equal Employment Opportunity Commission (EEOC) has weighed in on this issue. In general, the agency says an employer may establish a dress code that applies to all employees or employees in certain positions. There are a few possible exceptions.
While an employer may require all workers to follow a uniform dress code – even if the dress code conflicts with some workers’ ethnic beliefs or practices – a dress code must not treat some employees less favorably because of their national origin. For example, a dress code that prohibits certain kinds of ethnic dress, such as traditional African or East Indian attire, but otherwise permits casual dress would treat some employees less favorably because of their national origin.
Moreover, if the appearance code conflicts with an employee’s religious practices and the employee requests an accommodation, the employer must modify the appearance code or permit an exception, unless doing so would result in undue hardship.
Similarly, if an employee requests an accommodation to the dress code because of his or her disability, you must modify or permit an exception to the dress code, unless doing so would result in undue hardship. For example, an employer may have to consider granting an exception to an appearance policy that prohibits facial hair for an employee with certain skin conditions. And remember “undue hardship” is defined differently if the accommodation requested is for religious versus disability reasons.
The courts are addressing these and other issues. In a recent high-profile case, a retailer settled several cases involving Muslim female employees who were either not hired for or were terminated from sales positions because they wore a headscarf. The retailer required its employees to comply with its “Look Policy” that prohibited “caps” to be worn, but did not mention other headgear.
In earlier cases against the same retailer, a federal district court found that an employee acted on
her belief that the Quran requires women to wear headwear, and that the fact that she wore the scarf to the interview was sufficient for the store to enter into an interactive process regarding religious accommodation. The court held that the retailer, which marketed its “look” could not claim that permitting Muslim employees to wear their hijabs is an undue hardship based on its “Look Policy.”
In another case, a restaurant discharged a cashier because her religion, Christian Pentecostal, forbids her from wearing slacks. The applicant allegedly informed the restaurant of her need for religious accommodation and offered to wear a skirt instead of the uniform pants. In finding against the employer, a court accepted the EEOC’s claims that allowing the applicant to wear a skirt would not have cost anything and thus was not an undue hardship.
Additionally, a restaurant chain paid a server $150,000 after terminating him for having visible tattoos. The employee stated that his sect believed that tattoos symbolized its devotion to its creator. The restaurant’s objection that it wanted a consistent, all-American look did not trump the religious objection.
A federal court recently found in favor of an African-American housekeeper who proved that her employer did not consistently enforce its appearance policy. In her race discrimination case, she demonstrated that the employer did not consistently enforce its policy related to braided hair styles.
Hospitality employers must be prepared to discuss and address requests for accommodation to appearance policies, ensure consistent enforcement, and train supervisors to never make kneejerk decisions when it comes to requests for accommodation. Employers have a duty to reasonably accommodate an employee’s and applicant’s sincerely held religious beliefs and employees and applicants with disabilities.
Train supervisors to seek help from Human Resources or legal when accommodations are requested. When evaluating those requests, keep in mind that the need to maintain a certain look is generally not enough hardship to justify blanket refusals.
The Biology Of Dress Codes
There are physical and style differences between sexes, and dress-code policies will reflect this fact. The key is to impose the same level of duty on both sexes, even if individual requirements differ. The obligations should not impose a greater burden on one sex or differ markedly from social norms.
A bartender sued her casino employer because its policies required women to wear makeup and prohibited men from doing so. The court concluded that the dress code did not place a heavier burden on women than men or stereotype women, as the dress code required both men and women to maintain a similar professional appearance. Courts also have found that policies requiring men, but not women, to wear ties or allowing women, but not men, to wear earrings do not violate Title VII.
Another area of developing discrimination claims involves claims that the employee was not stylish, fit, or skinny enough. While obesity is not automatically a disability under the Americans with Disabilities Act, the EEOC and state agencies are increasingly making such claims, arguing in some cases that obesity due to medical reasons is a disability or the employee is covered under the law because the employer wrongly perceived the employee as a person with a disability.
Buttoning It All Up
No matter how hospitality employers choose to deal with the dress-code issue, expectations should be clearly stated in writing and readily available to employees. While employers still retain wide latitude, practical, social, and legal factors require careful preparation of policies related to dress and appearance, as well as consideration of such requests for accommodation that might have been readily (and safely) dismissed several years ago.
]]>A Good-Looking Policy
When drafting and implementing an appearance policy, the key to its success is to ensure that the policy is based on justifiable business reasons and does not have a disproportionate effect on particular segments of the workforce, particularly those in a protected category. For example, requiring female employees to wear uniforms or smocks, contact lenses, or sexually provocative clothing and not requiring the same of male employees has been found to violate federal law, specifically, Title VII of the Civil Rights Act of 1964. Additionally, 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, gender, national origin, religion,color, disability, age, or any other protected status. A well-drafted appearance policy should address all aspects of employee dress and appearance and should clearly explain that the company’s professional atmosphere is maintained, in part, by the image it presents to its guests and customers. Thus, the policy should state that all employees are expected to present a neat and well-groomed appearance. The policy should be clear that extremes in dress, including flashy, skimpy or revealing outfits and other non-businesslike clothing,must be avoided.It’s also a good idea to list examples of specific clothing items that are not acceptable at work, such as, jeans, t-shirts, sweatshirts, shorts, miniskirts (more than 3” above the knee), “hot pants,” short tops ,halter tops, backless dresses, flip flops, tennis shoes, sandals, hats,etc. The policy should address piercings by stating that the company’s professional image can be tarnished because of guests’ negative reactions to nose rings, eyebrow rings and tongue studs or similar piercings, can conceivably create certain safety hazards in the workplace, and are not allowed. With respect to tattoos, the policy should state that the hotel’s or restaurant’s upscale image can also be adversely affected by an employee’s display of significant, visible body tattoos. You can justify not allowing any employee who interacts with customers or guests to have visible tattoos. Although employers are well within their rights to set limits and restrictions on employee dress and appearance, be cautious of some potential pitfalls with such policies, including claims for gender, religion, national origin, race, and disability discrimination claims. At a minimum, carefully consider employee complaints that the policy interferes with their rights. Also, when a situation calls for accommodation of an individual with certain religious beliefs or a disability, be prepared to discuss such requests and to come up with a reasonable accommodation of an individual’s beliefs or limitations. Of course, any request by an employee that would jeopardize or get in the way of guest services and safety will likely not be deemed reasonable. Nevertheless, because state and local laws vary, if any of these situations arise, check with appropriate legal counsel, and be prepared to modify the policy if necessary.
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