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.
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