Applicable Laws: Personal Appearance of Employees - Case Study Example

Introduction There are so-called employment appearance s that many employers promulgate and enforce which aim to regulate appearance of an employee such as the hair length and style, mustaches and beards, clothing and eyeglasses, and maximum weight tolerances (Sarno, 2007). Aside from being a basis for hiring, it may also be a basis for retaining or even firing an employee (Sarno, 2007). Are these legitimate or are discriminatory acts of employers under the guise of employment codes? Would employers have the right to fire their employees based on a change of physical appearance? This paper hopes to give the relevant laws in the United States on employment and discrimination, the cases dealing with the personal appearance of employees, finally the analysis and conclusion based on these. Applicable Laws Title VII of the Civil Rights Act of 1964 provides that it shall be an unlawful employment practice to discriminate based on race, color, religion, sex, or national origin. Other federal laws prohibiting job discrimination include, the Equal Pay Act of 1963 (EPA) which essentially provides protection to men and women “who perform substantially equal work in the same establishment from sex based wage discrimination”; the Age Discrimination in Employment Act of 1967 (ADEA), which gives protection to individuals “who are forty (40) years of age or older”; the Americans with Disabilities Act of 1990 (ADA), specifically Title I and Title V of the said Act “which prohibit employment discrimination against qualified individuals with disabilities in the private sector, state and local governments”; and the Rehabilitation Act of 1973, specifically Sections 501 and 505 which essentially prohibits “discrimination against qualified individuals with disabilities who work in the federal government” (US Equal Employment Opportunity Commission, n.d.). The US Code provides that, “it shall be an unlawful employment practice for certain employers (42 USCA § 2000e(b)) either to a) fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individuals race, color, religion (42 USCA § 2000e(j)) sex, or national origin; or b) limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individuals race, color, religion, sex, or national origin” 42 USCA § 2000e-2(a)). There are also various anti-discrimination legislations by different states (Sarno, 2007) but it is only the District of Columbia that has a job discrimination law prohibiting employment discrimination based on personal appearance (Thomson/West, 2007). According to the Human Rights Act of the District of Columbia, “discrimination in employment based on a person’s actual or perceived appearance is expressly prohibited” (DC CA § 2-1402.11(a); DC CA § 2-1402.11(a)(1); DC CA §§ 1-2543; DC CA §§ 2-1401.73; DC CA § 2-1402.11(a)(2); DC CA § 2-1402.11(a)(3)). The exception to this rule include among others, that a certain practice is not unlawful “if it can be established that: (1) the practice was not intentionally devised or operated to contravene the statutory prohibitions, and (2) the practice can be justified by business necessity” (DC CA § 2-1401.03(a)). Personal Appearance under this Code, is defined as “the outward bodily appearance of any person, regardless of sex, including the manner or style of dress or personal grooming, not limited to hairstyle and beards (DC CA § 2-1401.02(22)). The hair or dress styles are characteristics which “may be symbolic of race, national origin or religion” (Thomson/West, 2007). Hence, any action which tends to limit or prevent these may constitute as a form of discrimination, “unless such an employer can show a reasonable business purpose (D.C. Mun. Regs. tit. 4, § 512.3). Case Law Courts have treated complaints regarding employment discrimination on a case to case basis and have identified factors which should be established in order to show a prima facie case for unlawful discrimination (Sarno, 2007). In Sam’s Club Inc. v. Madison Equal Opportunities Commission (MEOC), Maier who worked as a cashier at Sam’s Club which is a retailer doing business at Madison, filed a complaint with the MEOC, alleging that act of Sams Club when it fired her for wearing an eyebrow ring, was a manifestation of a discrimination against her on the basis of her physical appearance (Sam’s Club Inc. v. Madison Equal Opportunities Commission, 2002 WL 32539874 (Wis.App. IV Dist.). The Complainant usually had an eyebrow piercing as a facial jewelry (Sam’s Club Inc. v. Madison Equal Opportunities Commission, 2002 WL 32539874 (Wis.App. IV Dist.). The Respondent, on the other hand has a written dress code that states, “Appearance must be conservative, neat and clean” and “Nose rings or other facial piercings are not allowed,” (Sam’s Club Inc. v. Madison Equal Opportunities Commission, 2002 WL 32539874 (Wis.App. IV Dist.). The Respondent considered the said facial jewelry as a violation of its dress code and thus, terminated Complainant (Sam’s Club Inc. v. Madison Equal Opportunities Commission, 2002 WL 32539874 (Wis.App. IV Dist.). The defense was that said prohibition is for a reasonable business purpose (Sam’s Club Inc. v. Madison Equal Opportunities Commission, 2002 WL 32539874 (Wis.App. IV Dist.). The Court upheld MEOC’s decision, in that, the retailers desire to prohibit all employees from wearing facial jewelry was not a “reasonable business purpose” given the intent of the equal opportunities ordinance determination, (Sam’s Club Inc. v. Madison Equal Opportunities Commission, 2002 WL 32539874 (Wis.App. IV Dist.). The Court found reasonable the explanation of MEOC that facial jewelry was included within the broad definition of “physical appearance” as according to the Madison ordinance (Sam’s Club Inc. v. Madison Equal Opportunities Commission, 2002 WL 32539874 (Wis.App. IV Dist.). In this case, Sams Club failed to show that it is reasonable for them to fire an employee for wearing facial jewelry which it considered as “distracting” when it allows employees to wear shorts, cowboy boots, movie buttons, multiple earrings, and other items of attire that are more distracting than an unobtrusive eyebrow ring. (Sam’s Club Inc. v. Madison Equal Opportunities Commission, 2002 WL 32539874 (Wis.App. IV Dist.). Furthermore, it upheld the finding of MEOC that there was no evidence to prove that customers are likely to be distracted by employees who wear eyebrow rings, as no research had been done to answer that question (Sam’s Club Inc. v. Madison Equal Opportunities Commission, 2002 WL 32539874 (Wis.App. IV Dist.). Finally, the Court stressed that, “Allowing employers to cater to the perceived prejudices of their customers or shareholders is inconsistent with the intent of the ordinance and is the very reason why governments have enacted laws prohibiting discrimination” (Sam’s Club Inc. v. Madison Equal Opportunities Commission, 2002 WL 32539874 (Wis.App. IV Dist.). In Carter v Bruce Oakley, Inc., the District Court held that the employee established prima facie case of discrimination and held that the award of back pay and attorney fees was appropriate (Carter v Bruce Oakley, Inc., 849 F.Supp. 673, 64 Fair Empl.Prac.Cas. (BNA) 967 (1993). In this case, the employee who after injury and professed with the Jewish religion, was not allowed to return to work without shaving his beard (Carter v Bruce Oakley, Inc., 849 F.Supp. 673, 64 Fair Empl.Prac.Cas. (BNA) 967 (1993). The Court found plaintiff’s contention credible in that the defendant refused to allow him to return to work once his injury had healed because of the way the plaintiff wished to wear his beard (Carter v Bruce Oakley, Inc., 849 F.Supp. 673, 64 Fair Empl.Prac.Cas. (BNA) 967 (1993). In this case, there was not only discrimination based on appearance, the Court also found and held a prima facie case of religious discrimination (Carter v Bruce Oakley, Inc., 849 F.Supp. 673, 64 Fair Empl.Prac.Cas. (BNA) 967 (1993). Here, the employer was unable to demonstrate that it would suffer undue hardship if it allowed the plaintiff to wear his beard nor did it project an unprofessional appearance (Carter v Bruce Oakley, Inc., 849 F.Supp. 673, 64 Fair Empl.Prac.Cas. (BNA) 967 (1993). In other cases, the Court favored the employer’s defense. In Metropolitan Edison Co. v Unemployment Compensation Bd. of Review, a utility worker assigned to crane operations at Three Mile Island nuclear generating station, whose beard grew was held to have committed willful misconduct when he failed to shave his beard as ordered by his employer (Metropolitan Edison Co. v Unemployment Compensation Bd. of Review (1992) 146 Pa Cmwlth 648, 606 A2d 955). In this case, the employee was disqualified from receiving unemployment compensation benefits for failing to shave his beard (Metropolitan Edison Co. v Unemployment Compensation Bd. of Review (1992) 146 Pa Cmwlth 648, 606 A2d 955). According to the case, in order for the employee to qualify as a respirator, he must pass both medical examination and a fit test which required an employee to have a clean shaven face (Metropolitan Edison Co. v Unemployment Compensation Bd. of Review (1992) 146 Pa Cmwlth 648, 606 A2d 955). And in the case, “in order to protect employees from exposure to radioactive contaminants that accidentally could be released in emergency or accident situation, employer established a rule and policy that employees become respirator qualified (Metropolitan Edison Co. v Unemployment Compensation Bd. of Review (1992) 146 Pa Cmwlth 648, 606 A2d 955). The Court found that facial hair decreases the protection afforded by a respirator (Metropolitan Edison Co. v Unemployment Compensation Bd. of Review (1992) 146 Pa Cmwlth 648, 606 A2d 955). In this case, the employee did not heed the reasonable request of the company and therefore, the Court held such an action to be a willful misconduct (Metropolitan Edison Co. v Unemployment Compensation Bd. of Review (1992) 146 Pa Cmwlth 648, 606 A2d 955). In yet another case, Woods v. Safeway Stores, Inc., the Court held that employers no beard policy served a legitimate purpose and plaintiff’s discharge for admitted violation thereof on advice of physician to cure condition which afflicted blacks almost exclusively and hence was not a violation of Act (Woods v. Safeway Stores, Inc., 420 F.Supp. 35, 13 Fair Empl.Prac.Cas. (BNA) 114, 12 Empl. Prac. Dec. P 11,111 (1976). In this case, the plaintiff who was a black citizen got accepted at the defendant’s store which maintains a chain or retail grocery store but was later on discharged due to his failure to adhere to the defendant’s local employee grooming code because of his beard (Woods v. Safeway Stores, Inc., 420 F.Supp. 35, 13 Fair Empl.Prac.Cas. (BNA) 114, 12 Empl. Prac. Dec. P 11,111 (1976). The Court found that there was nothing in evidence to indicate that Safeway had any knowledge of the condition known as PFB and evidence further showed that Safeway applies the “no beard” policy uniformly to both white and black males (Woods v. Safeway Stores, Inc., 420 F.Supp. 35, 13 Fair Empl.Prac.Cas. (BNA) 114, 12 Empl. Prac. Dec. P 11,111 (1976). The Court explained that “what is required by Congress is the removal of artificial, arbitrary, and unnecessary barriers to employment when these operate to discriminate on the basis of racial or other impermissible classifications” (Woods v. Safeway Stores, Inc., 420 F.Supp. 35, 13 Fair Empl.Prac.Cas. (BNA) 114, 12 Empl. Prac. Dec. P 11,111 (1976). In this case, the business involved a retail food business, where the product sold is intended to be consumed, and hence overall store hygiene and an appearance of cleanliness is an important aspect of customer preference (Woods v. Safeway Stores, Inc., 420 F.Supp. 35, 13 Fair Empl.Prac.Cas. (BNA) 114, 12 Empl. Prac. Dec. P 11,111 (1976). The Court concluded that that “a business purpose exists to support defendants “no beard” rule, and that the rationale behind the rule overrides the slight racial impact resulting therefrom” (Woods v. Safeway Stores, Inc., 420 F.Supp. 35, 13 Fair Empl.Prac.Cas. (BNA) 114, 12 Empl. Prac. Dec. P 11,111 (1976). As for standards applicable to men and women, decisions by the courts indicated that, plaintiff must be able to show that there is an adverse effect on employment opportunities on the plaintiff’s sex in order to be entitled to relief on the ground of an actionably discriminatory employment appearance code (Sarno, 2007). The Court explained that the intent to limit the application of Title VII in the area involving sex, to those policies or practices which discriminate based on “immutable characteristics, characteristics which are changeable but involve fundamental rights such as having children or getting married, and characteristics which are changeable but significantly affect employment opportunities afforded to one sex” (Sarno, 2007). If there is no showing to this effect then there is no violation of the Civil Rights Act (Sarno, 2007). In one case, the Court upheld the different maximum weight standard for male and female flight attendants as there was no detrimental impact on the opportunities of women to be employed as flight attendants (Air Line Pilots Asso., International v United Air Lines, Inc., Not Reported in F.Supp., 1979 WL 34 (E.D.N.Y.), 26 Fair Empl.Prac.Cas. (BNA) 607, 21 Empl. Prac. Dec. P 30,419). The court held however that the disciplinary action taken for weight violations was discriminatorily applied against female flight attendants and hence illegal (Air Line Pilots Asso., International v United Air Lines, Inc., Not Reported in F.Supp., 1979 WL 34 (E.D.N.Y.), 26 Fair Empl.Prac.Cas. (BNA) 607, 21 Empl. Prac. Dec. P 30,419). Analysis and Conclusion As seen from the applicable laws enacted and case laws that have been decided, the Courts have taken into account not only the intent to protect the employees from discriminatory practices, it has also weighed certain factors that would allow reasonable standards for employers to have appearance codes and other policies for legitimate business purposes. Courts consider the justifications for showing discrimination which include determining the intent of employers to contravene statutory prohibitions, legitimate business necessity, appearance for the reasonable protection of employees themselves, bona fide occupational qualifications, uniform applicability to all employees similarly situated, customer preferences and availability of alternatives (Sarno, 2007). Courts also consider and examined various instances where there is a “prima facie showing of discrimination” such as practices which violate the constitutionally protected rights, significant adverse effect on employment opportunities, inconsistent application or enforcement, disproportionate burden on a certain class of employees, policies which are demeaning and tend to stereotype and finally the arbitrariness of a certain company policy based on appearance (Sarno, 2007). Based on these, a certain policy is not automatically discriminatory unless there is a showing and a proof of one of those mentioned above. On the other hand, a justification for a discriminatory policy may not be readily accepted unless the employer can also prove the reasonableness based on the given factors mentioned. Hence, the employer has the right to fire individuals based on the changes on their personal appearance if there is reasonable justification for it as mentioned, and there is no prima facie showing of discrimination taking into account the different instances mentioned. An employer must therefore, weigh and consider all these factors before it decides to terminate an employee. References Air Line Pilots Asso., International v United Air Lines, Inc., Not Reported in F.Supp., 1979 WL 34 (E.D.N.Y.), 26 Fair Empl.Prac.Cas. (BNA) 607, 21 Empl. Prac. Dec. P 30,419). Carter v Bruce Oakley, Inc., 849 F.Supp. 673, 64 Fair Empl.Prac.Cas. (BNA) 967 (1993). DC CA § 2-1402.11(a); DC CA § 2-1402.11(a)(1); DC CA §§ 1-2543; DC CA §§ 2-1401.73; DC CA § 2-1402.11(a)(2); DC CA § 2-1402.11(a)(3); DC CA § 2-1401.03(a); and DC CA § 2-1401.02(22) D.C. Mun. Regs. tit. 4, § 512.3 West/Thomson (2007). Employment Discrimination Coordinator. Analysis of State Law, volume no. 4, p. 130. Metropolitan Edison Co. v Unemployment Compensation Bd. of Review (1992) 146 Pa Cmwlth 648, 606 A2d 955 Sam’s Club Inc. v. Madison Equal Opportunities Commission, 2002 WL 32539874 (Wis.App. IV Dist. Sarno, G. (2007). Employers Discriminatory Appearance Code. American Jurisprudence Proof of Facts, volume 33 (2d), p. 71. US Equal Employment Opportunity Commission (n.d.). Federal Laws Prohibiting Job Discrimination. Retrieved December 10, 2007, from http://www.eeoc.gov/facts/qanda.html. US Code 42 USCA § 2000e(b); 42 USCA § 2000e(j); and 42 USCA § 2000e-2(a). Woods v. Safeway Stores, Inc., 420 F.Supp. 35, 13 Fair Empl.Prac.Cas. (BNA) 114, 12 Empl. Prac. Dec. P 11,111 (1976). 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