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One size doesn’t fit all: Getting dress and grooming policies right

Just like few items of clothing are truly one-size-fits-all, workplace policies regarding dress and grooming can vary dramatically. Some companies require formal dress, some "business casual" and some have almost no any restrictions on dress and grooming at all. But is it legal for employers to regulate how employees look? The answer is, like most things dealing with employment law, "it depends."

First off, it is generally unlawful to prohibit female employees from wearing pants. Moreover, requiring women to wear sexually provocative uniforms can violate California's Fair Employment and Housing Act. Other grooming policies may be seen as 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).

However, a grooming policy that differentiates in some respects between men and women does not, by itself constitute sex discrimination. In the case of Jespersen v Harrah's Operating Co. (9th Cir 2006) 444 F3d 1104, 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 enforcing grooming standards that conflict with an employee's religious beliefs and practices. In one case, an employer required employees to shave any facial hair that prevented them from achieving a gas-tight face seal when wearing a respirator (Bhatia v Chevron U.S.A., Inc. (9th Cir 1984) 734 F2d 1382, 1383). One employee complained to his supervisor that 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. The employee eventually accepted a transfer to a janitorial position at reduced wages. The court found that while the employee 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, chances are that your company has a dress and grooming policy. And it's very possible it hasn't been reviewed in a long time. Take a quick look at your policy, making sure that (1) such policies do not disproportionately impact one group or gender more than another, and (2) that supervisors correctly administer these policies. While these policies are undoubtedly always made with good intensions, problems can arise if they are not implemented properly.

This article is for education and information purposes only; it should not be construed as legal advice. If you have an employment law question for inclusion in a future article, contact Brett T. Abbott at Gubler & Abbott LLP (bta@thecalifornialawyers.com). For specific employment law advice or other legal assistance, contact Gubler & Abbott LLP, (559) 625-9600, 1110 N. Chinowith St., Visalia, CA 93291 (www.thecalifornialawyers.com).

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