Personal Appearance Policies: What Employers Need to Know
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1 th Street, NW, 11 th Floor Washington, DC Tel: (202) Fax: (202) Personal Appearance Policies: What Employers Need to Know Corey Argust Labor & Employment Associate PilieroMazza PLLC 1
2 Introduction Personal Appearance Policies and Federal Discrimination Laws D.C. Law and Personal Appearance Policies The National Labor Relations Act and Insignia Workplace Safety and Health Drafting Personal Appearance Policies Further Information 2
3 Why Have a Personal Appearance Policy? Professionalism Safety Job requirements Office character and image 3
4 Challenges Emotional and personal topic for employers Communicates more than the policy itself Difficulty in drafting and enforcing Policy will not protect employers against claims 4
5 Federal Discrimination Laws Personal appearance policies are legal, but they must be facially neutral All federal laws apply EEO laws come into play frequently Gender Gender identity and sexual orientation Religion Disability 5
6 Federal Discrimination Laws Personal appearance policies implicate several federal laws prohibiting discrimination Claims of discrimination based on restrictions on facial hair, tattoos, body piercings, clothing, etc. Recent examples of complaints: Citibank allegation that employee was not allowed to wear what other women wore Flight attendants claim that rules about weight and dress not applied to men Abercrombie & Fitch rule against hiring women wearing hijabs 6
7 Reasonable Accommodations Federal law provides accommodation for religious beliefs and disabilities Does not have to be the employee s preferred accommodation Exceptions: Legitimate business interests Cloutier v. Costco Wholesale Group legitimate interest presenting a professional workforce to the public Not related to a protected class or other federal law 7
8 D.C. Law and Personal Appearance Policies Employers policies must comply with the D.C. Human Rights Act Prohibits employment discrimination on the basis of personal appearance Exception: written dress code which requires cleanliness, uniforms, or prescribed standards Uniformly applied to a class of employees for a reasonable business purpose Turicos v. U.S. Services Industries - rule to look sharp at all times 8
9 The NLRA and Personal Appearance Policies The National Labor Relations Act ( NLRA ) Protects employees who engage in protected activity relating to their terms and conditions of employment NLRA applies to both unionized and nonunionized employees Personal appearance policy cannot interfere with employees rights Broad prohibition on insignia may impermissibly interfere with exercise of employee s rights under NLRA 9
10 The NLRA and Personal Appearance Policies Restrictions on insignia permissible under the NLRA when employers need to: Maintain decorum, discipline, and safety Prevent attacks on employer s products or services Prevent unreasonable interference with employer s public image 10
11 Workplace Safety and Health Employers may deny requests for accommodation if it jeopardizes workforce health or safety. e.g., hairnets, long pants, or protective clothing Policies should include neutral language and be applied uniformly to all employees EEOC v. Oak-Rite Manufacturing Corp employer does not have to choose between increasing risk of injury and violating federal anti-discrimination laws Under D.C. law, employers may require adherence to dress code if there is a danger to health or safety 11
12 Drafting Personal Appearance Policies Make sure your policy: Is facially neutral Does not impact one protected group more than another Does not use vague terms open to interpretation Avoid overly-restrictive policies Treats violations in a consistent manner Balances objectives of organization with employee morale Is discreet and tactful in its approach 12
13 Counseling Employees Consistent Fair Document Keep records of all accommodation requests and responses 13
14 Further Information D.C. Human Rights Act U.S. Equal Employment Opportunity Commission: Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disability Act Religious Garb and Grooming in the Workplace: Rights and Responsibilities 14
15 th Street, NW, 11 th Floor Washington, DC Tel: (202) Fax: (202) Questions? Corey Argust
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