Shades of Gray in Discrimination Law

Everyone knows discrimination in the workplace is illegal.  The prohibition of discrimination based on age, race, national origin, religion, sex, and disability are well known in California.  But not all discrimination is cut and dry – gray areas abound in this arena.  This article will explore four such situations.

Dress Standards
An employer is not discriminating when it requires reasonable dress and grooming standards of employees.  Of course appropriate business attire may generally be different for men and women when there is a clear, nondiscriminatory rationale.  For example, men may be required to cut their hair short, while women may be allowed to wear their hair longer.  However, it is illegal to prohibit women from wearing pants in the workplace (Government Code section 12947.5).  Employers must also accommodate an employee’s religious beliefs that affect his or her dress standards, physical appearance or grooming.

Tattoos and Piercings
California’s discrimination laws do not protect employees because of their tattoos and body piercings.  Employers are free to create policies prohibiting visible tattoos and piercings.  Moreover, these policies may differ as applied to men and women – i.e. employers can prohibit men from wearing earrings, while allowing women to do so.

Height and Weight Standards
Employers cannot establish height or weight standards which, in effect, discriminate against protected classes.  If an employer can show that  a weight or height restriction both relates directly to, and is an essential function of, the job, then selection of employees according to justifiable height and weight standards is not discriminatory.

English-only Policies
Employers are limited in their ability to adopt an “English-only policy.” If an employer has five or more employees (unless the employer is a non-profit religious association or religious corporation), an employer may not adopt or enforce a policy limiting or prohibiting the use of any language in the workplace unless (1) The language restriction is justified by a “business necessity”; and (2) The employer notifies the employees of the circumstances and time when the language restriction must be observed and of the consequences for violating it. 
What constitutes a business necessity?  A business necessity is a legitimate business purpose such that: (1) The language restriction is necessary for the safe and efficient operation of the business; (2) The language restriction effectively fulfills the business purpose it is supposed to serve; and (3) There is no alternative practice to the language restriction that would accomplish the business purpose equally well with a lesser discriminatory impact.

Conclusion
These are of course not the only gray areas in California discrimination law.  It is sometimes difficult to keep up with all the changing facets of discrimination law, and each fact pattern creates new challenges.  Yet these examples are instructive, and the basic tenets of each can applied across the broad spectrum of discrimination law issues.