A Casual Problem? Implementing an appropriate dress and grooming policy

As far as dress goes, the modern workplace is becoming more and more casual. Suits, ties, and other formal apparel are often the exception at work, rather than the rule. Yet virtually all businesses, especially those where face-to-face customer/client interaction is required, want employees to look their best. As such, California law allows for reasonable requirements concerning employee dress and grooming. There are, however, restrictions.

For one, in California, it is generally unlawful to prohibit women from wearing pants. Moreover, requiring women to wear sexually provocative uniforms can violate FEHA. Other grooming policies may be discriminatory if they create an unusual burden on one gender in terms of expense, time to get ready for work, etc. (Jespersen v Harrah's Operating Co. (9th Cir 2006) 444 F3d 1104).

Yet a grooming policy that differentiates in some respects between men and women does not, by itself and without any further showing of disparate treatment, constitute sex discrimination. In Jespersen v Harrah's Operating Co., the employer terminated a female casino bartender for refusing to comply with the employer's grooming policy, which (1) required women to wear makeup, (2) allowed women to have long hair, while men had to have short hair, and (3) prohibited men from having painted fingernails. The court held that the grooming policy did not impose an unequal burden on women. While the employer's policy contained sex-differentiated requirements regarding each employee's hair, hands, and face, and while those individual requirements differed according to gender, none on its face placed a greater burden on one gender than the other.

Employers must also reasonably accommodate employees in implementing grooming standards that conflict with an employee's religious beliefs and practices (Bhatia v Chevron U.S.A., Inc. (9th Cir 1984) 734 F2d 1382, 1383). In Bhatia v. Chevron U.S.A., Inc., the employer required employees to shave any facial hair that prevented them from achieving a gas-tight face seal when wearing a respirator. Mr. Bhatia, a machinist, informed his employer he could not comply with the requirement because he was a devout Sikh, and his religion proscribed the cutting or shaving of any body hair. Mr. Bhatia was suspended, and eventually accepted a transfer to a janitorial position at reduced wages. The employer refused to promise it would return Mr. Bhatia to a machinist position if equipment were developed that could be used safely with a beard. The court found that while Mr. Bhatia had established a case of religious discrimination, the employer showed that it made good faith efforts to accommodate his religious beliefs, and that further accommodation would have caused it undue hardship.

In conclusion, employers must ensure that supervisors correctly administer dress and grooming policies, and that the policies themselves do not violate the rules discussed above. It is also important to make sure that such policies do not disproportionately impact one group or gender more than another.