Hold the Scissors – Telling Employee to Cut Hair Can Lead to Your Company Suffering a Haircut

David R. Bohm

By David R. Bohm

We have all seen hairstyles that made us ask the question, “What were they thinking?” But when employees show up with such hairstyles in our place of business, do we have the right to restrict hairstyles? Does it make a difference if the hairstyle – or even a head covering – is due to the employee’s religious beliefs?

Recent federal court decisions have made it clear that an employer must tread carefully when addressing an employee’s choice of hairstyle or head dress. Otherwise, it could be the employer being subject to a “haircut,” rather than the employee.

Accommodating Religious Beliefs

Of particular concern are cases where an employee’s choice of hairstyle or head dress may have a religious basis. In such cases, an employer has a duty under Title VII of the federal civil rights act (and in most states under state law, as well) to reasonably accommodate the employee’s religious beliefs. Failure to do so could result in the employer being found liable for religious discrimination, and being required to pay actual and punitive damages, as well as the employee’s legal fees.

In one recent case, reported in an EEOC press release issued April 27, 2012, the owner of a chain of Taco Bell restaurants agreed to pay $27,000 to resolve a religious discrimination lawsuit filed by the EEOC because the owner had fired an employee who refused to cut his hair. The employee was a practicing Nazirite, who, in accordance with his religious beliefs, had not cut his hair in 15 years. After being employed at one of the owner’s restaurants for six years, the employee was told he would have to cut his hair if he wanted to retain his job. Even though he explained that his religion forbade him from cutting his hair, the employer insisted he had to do so if he wanted to keep his job. As the EEOC attorney handling the case, Lynette Barnes, explained in the press release, “No person should be forced to choose between his religion and his job when the company can provide an accommodation without suffering an undue hardship.” In addition to paying the $27,000, the employer agreed to institute a formal religious accommodation policy.

The EEOC has brought several suits against retailer Abercrombie & Fitch because it refused to hire Muslim women who wore headscarves to interviews, and in one case failed to promote a Muslim woman who wore a headscarf to a position on the sales floor, claiming that the headscarves did not comport with Abercrombie’s “Look Policy.” In one of the failure to hire cases, a jury in federal court in Oklahoma rendered a $20,000 verdict against Abercrombie in July 2011 for its failure to reasonably accommodate the applicant’s religious beliefs.

It Says In the Employee Handbook …

By way of contrast, if an employee wears his hair in a style that violates his employer’s dress code, and he does not have a religious basis for his hairstyle, the employer’s enforcement of its dress code is less likely to run afoul of the law. On May 4, 2012, St. Louis Post-Dispatch reporter Steve Geigerich reported on the case of Antonio Hegwood, a gas station and convenience store employee who had been placed on leave by his employer for refusing to cut off his dreadlocks. The employer had a policy prohibiting dreadlocks and mohawks, and requiring supervisor approval for “immoderate styles … such as corn rows, braids, etc.”

In discussing the case, a Missouri Department of Labor spokeswoman stated that an employer could condition employment on an employee’s compliance with the employer’s “hair styling preferences” so long as the hairstyle worn by the employee was not “connected with the employee’s inclusion in a protected category.” The spokesperson went on to recognize not only that a hairstyle could be a tenet of a person’s religion, but also stated that it would be illegal to refuse to hire someone because the employer considered the employee disabled because of hairstyle (e.g., that the employee suffered from cancer based on a lack of hair).

However, an EEOC spokesperson quoted by Geigerich raised another concern. She stated that, “If an employer prohibits a range of hair styles, such as both corn rows and mohawks, and the no cornrows/dreadlocks policy affects 30% of African-American employees while the no mohawks affects only 3% of its white employees, we could say that the policy had a disparate impact on African-Americans, even if it applies to all employees.”

Best Hairstyle Policy

Thus, not only must an employer accommodate hairstyles worn by its employees based upon their religious beliefs where it is reasonable to do so (a similar rule also applies to facial hair), but the employer must also be concerned about potential liability if its facially neutral policy has a significantly greater impact on one race (or other protected category) than it does on another. Perhaps the best policy for an employer is not to dictate hairstyles, but instead, particularly where employees will interact with the public, to require that employees come to work with clean, neatly-groomed hair and, where appropriate, that they wear hairnets or other devices to keep their hair from interfering with the performance of their job.

Bad Hair Day

Another interesting recent case is N.L.R.B. v. White Oak Manor, an unpublished opinion issued by the U.S. Court of Appeals for the Fourth Circuit in November, 2011, which arose when an employee, Nicole Wright-Gore, wore a hat to work after receiving what she perceived to be an extremely bad haircut. Her supervisor told her to remove the hat or go home. The supervisor explained to Ms. Wright-Gore that wearing a hat violated the nursing home’s policies. Ms. Wright-Gore began taking photos of other employees wearing hats or displaying tattoos, which also violated the nursing home’s dress code. She then showed these photos to other employees and complained that the nursing home’s dress code was not being enforced in an even-handed manner. Many of these employees apparently agreed with her complaint of disparate enforcement of the dress code. Shortly thereafter, Ms. Wright-Gore was fired, allegedly for taking photos of other employees without their permission (although the evidence showed that employees routinely took each other’s photos without permission).

Both the National Labor Relations Board and the Fourth Circuit upheld a finding made by an administrative law judge that White Oak Manor had violated the National Labor Relations Act by interrogating, threatening and discharging an employee for participation in protected concerted activity. Specifically, the ALJ had found that “what had initially started as an individual complaint by [Wright–Gore], that she was being treated unfairly by being required to remove her hat, evolved into a campaign by [Wright–Gore] to have the dress code enforced in a fair and equitable manner.”

In upholding the decision, The Fourth Circuit held that:

By its plain terms, the NLRA protects employees in the exercise of conduct engaged in “for the purpose of … mutual aid or protection.” 29 U.S.C. § 157. The ‘mutual aid or protection’ clause protects employees who seek to improve terms and conditions of employment or otherwise improve their lot as employees through channels outside the immediate employee-employer relationship. An employer’s dress code is one such “condition[ ] of employment which employees may seek to improve,” and such efforts qualify as protected activity under the NLRA. (internal quotation marks and citations omitted).

The Court also noted that a single employee’s complaint, even if that employee is not authorized to act as a spokesperson by her fellow employees, is enough to constitute concerted action if a group of employees considered they had a grievance and decided, however informally, that it should be taken up with management, provided that the remedy sought would benefit more than just the complaining employee. Here, Wright-Gore had spoken with other employees about the disparate enforcement of the dress code to get their support so she could “go to management and say … other people…are agreeing with me.” The Court further found the picture taking to be protected conduct intended to document her grievance.

Consistency … If You Say It, Mean It … For Everyone

These cases point out the need for employers to be consistent in enforcement of their hair and other dress code policies. If you have a dress code, make sure that your employees are informed of it in writing. Then make sure that it is enforced as to all employees, with the only exception being where the employee has a legitimate religious or medical reason for varying from the policy.

Finally, while an employer can discipline an employee for refusal to follow an appropriate policy, the employer should refrain from disciplining the employee for protesting the policy (so long as the employee does not become excessively insubordinate in doing so).

Posted by Attorney David R. Bohm. Bohm is an experienced litigator working with health care, government, and business clients on employment, intellectual property, and complex contract issues. He is also skilled in alternative dispute resolution as a means to solve disagreements without litigation.

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