What if you are given an employee handbook in your new job and the handbook contains restrictions on such things as what you can wear to work or whether you can smoke on the job? Can an employer make such rules? The answer to that is yes, employers can impose behavior restrictions as long as the restrictions do not illegally discriminate against employees.
Various employment rules regulating employees' personal appearance and behavior have been challenged as sex discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000 et seq. Included are rules governing the length of an employee's hair, type of dress or uniform, restrictions on weight, and restrictions on smoking.
The law has developed to permit separate dress and hair rules for male and female employees that are consistent in relation to community or business standards. Title VII was meant to guarantee equal employment opportunities, and dress and grooming codes will be upheld if they do not inordinately burden one sex or if their burden is minimal.
Hair Length and Style
When rules prohibiting long hair for men but not for women were first challenged under Title VII, some courts treated the issue as a matter of sex discrimination and some did not. Then, opinions changed, and almost all courts held that there was no Title VII violation for such hair length rules. Later, the issue was framed in terms of whether a regulation on hair applying only to men constituted ''sex plus'' discrimination. Under that test, Title VII's ban on sex discrimination only applied to discrimination based on ''immutable characteristics'' or discrimination affecting ''fundamental rights.'' Hair length was neither immutable nor, in a private employment situation, a fundamental right subject to constitutional protection. The modern approach is that a hair length rule for one sex is acceptable if it is part of an overall grooming code that, in rough terms, applies with equal burdensomeness to both sexes.
Dress codes also have been subject to Title VII challenges when there have been qualitative differences in the dress requirements for men and women. These cases have held that:
- Dress codes cannot weigh more heavily on women then on men
- Different dress standards may be established for male and female employees without violating Title VII
- An employer cannot require men to wear "appropriate business attire" and women to wear uniforms without showing a business necessity for the dress policy
- An employer cannot forbid women to wear eyeglasses instead of contact lenses and allow men to wear eyeglasses
- An employer can allow women to wear earrings and forbid men to wear earrings
- An employer can require female, but not male, employees to wear makeup
- An employer can require employees to dress conservatively and attempt to achieve the "Brooks Brothers look" and terminate a female employee for wearing too much makeup and her hair down
- An employer cannot require female employees to wear revealing or suggestive clothing on the job
- An employer can dismiss a female employee for wearing clothes that are too provocative
Maximum Weight Rules
Maximum weight rules may subject an employer to Title VII liability if they are imposed on one sex only, or if they are enforced differently against men than they are against women.
When an employer's smoking ban applies to men and women alike, there is no sex discrimination. However, a Title VII violation exists when men are allowed to smoke but women are forbidden to do so. An employer is also outside the law when it allows male employees to smoke at any time and any place but allows females to smoke only at specified times and in specified places.
Questions for Your Attorney
- Can my employer require a male, but not a female, employee to have short hair?
- Can my employer require female employees to wear uniforms and male employees to wear appropriate business attire?
- Can my employer ban all employees from smoking?