Policies on Personal Appearance May Make Distinctions Based on Gender
 
May 1, 2000
 

Is it sex discrimination for an employer to prohibit its male employees from wearing earrings without any similar prohibition for its female employees? The United States District Court for the Eastern District of Pennsylvania recently answered this question with a resounding "no," reemphasizing the notion that properly administered appearance policies do not generally violate Title VII.

In Kleinsorge v. Eyeland Corp. (E.D. Penn. 2000), Dr. Frank Kleinsorge worked as an optometrist in Eyeland’s Stroudsburg, Pennsylvania store. Eyeland’s appearance policy prohibited male employees from wearing earrings while on the job. The policy did not, on the other hand, prohibit female employees from wearing earrings at work. Despite the appearance policy, Dr. Kleinsorge often wore small earrings to work. Dr. Kleinsorge was counseled for this practice, but he continued to wear earrings on the job. He was ultimately fired for doing so. After he was fired, Dr. Kleinsorge filed suit against Eyeland arguing that Eyeland discriminated against him on the basis of his sex by firing him for violating an appearance policy that provided differing standards for men and women. The court rejected Dr. Kleinsorge’s argument and dismissed his complaint. According to the court, "minor differences in personal appearance regulations do not constitute sex discrimination within the meaning of" Title VII.

The Kleinsorge opinion underscores the idea that an employer may establish an appearance policy with different standards for men and women without running afoul of Title VII. Fashions for men and women differ, and an employer may insist that male and female employees dress or groom themselves differently to maintain professional decorum.

This is not to say, however, that all appearance policies are enforceable. An appearance policy should be justified by sound business reasons. For example, safety and hygiene are commonly accepted justifications for appearance policies. Likewise, an employer is more likely to be able to enforce an appearance policy against an employee who has customer contact than an employee who does not.

Even where there is a sound business reason for an appearance policy, employers should apply the policy in an even-handed manner. Suppose, for example, that an employer enforces its appearance policy more strenuously against its Asian employees than it does against its Latin employees. While the policy itself may be permissible, the employer has likely violated Title VII by applying it in a discriminatory fashion.

Likewise, employers should be sensitive to the possibility that a particular appearance standard may affect an employee’s race, religion or national origin. For example, there may be religious reasons for an employee’s hair length or facial hair growth. Similarly, "no beard" requirements may be racially discriminatory when the purpose for growing the beard is to alleviate skin conditions disproportionately affecting certain minority groups. Under such circumstances, an employer should be flexible in enforcing appearance standards absent undue hardship.

In the end, evenly applied appearance policies rarely present a problem. However, when such a policy affects an employee’s race, religion or national origin, employers should seriously consider the employee’s concerns and ways to accommodate those concerns.

For more information please contact Gregory Williamson at 1-888-688-8500 or at gwilliam@hklaw.com.

Related Practices