Employers may have legitimate reasons to impose a dress code, set minimum grooming standards, or even mandate uniforms. These interests range from safety to branding, or customer satisfaction.
California recently passed a law that affects employers’ discretion to set personal grooming standards. California’s latest change may require employers to review and revise grooming and dress code policies. Various other limitations and obligations are worth reviewing as well.
Employee handbooks or policies may impose personal grooming standards, including hair styles, beards, makeup, fingernails, jewelry, hygiene, and other personal matters. These issues may be relevant when employees deal with the public, handle dangerous equipment, or to maintain sanitation.
The Legislature amended the Fair Employment and Housing Act’s definition of “race,” effective January 1, 2020, to include “hair texture and protective hairstyles.” Protective hairstyles include “braids, locks, and twists.”
This new law may affect the legality of employers’ grooming and appearance standards. Existing regulations issued under the Fair Employment and Housing authorize “physical appearance, grooming, or dress standards,” only if they do not distinguish based on race, sex, or another prohibited basis, or “significantly burden the individual in his or her employment . . . .” Because race discrimination may now include prohibiting certain hairstyles, existing employer policies that require “short hair,” or “neat, professional hairstyles” may violate the FEHA.
There are other existing provisions governing grooming standards. Employers must ensure grooming standards conform with an employee’s gender identity or expression. The FEHA also requires accommodation of religious dress and grooming practices that do not cause an undue hardship to the employer.
Employers may prove as a defense to a discrimination claim that a particular hair length or no-beard policy is required based on “business necessity.” However, doing so will require specific proof, for example, that safety equipment cannot accommodate long hair or a beard, or that a long beard or hairstyle will cause danger to the employee, other workers, or the public.
Finally, employers must ensure grooming standards are drafted and enforced consistent with anti-discrimination laws other than those discussed above. Some hygiene issues, for example, may relate to a disability, for which possible reasonable accommodation is required. As stated, an employer’s policy banning earrings or rings around mechanical equipment may be entirely legitimate for safety reasons. However, employers must enforce these policies equally.
Some employers require employees to wear uniforms, (such as a special apron, logo shirt, etc.). In California, employers must pay for the cost of the uniform, replacements for normal wear and tear, as well as any special upkeep (such as dry cleaning). The Division of Labor Standards Enforcement considers normal laundering to be the employee’s responsibility. Employees’ loss or destruction of their uniforms is better treated as a disciplinary issue.
But what is a “uniform”? In California, the definition is broad. It merely means “wearing apparel and accessories of distinctive design or color.” Employers mandating seemingly generic items like “khaki pants,” a “brown, leather belt,” or a “blue, button-down shirt,” therefore, may be prescribing a uniform.
Employers also cannot mandate employees’ purchase of goods from a particular business under the Labor Code. Therefore, a retailer that insists its employees wear the retailer’s brand should furnish and clean the goods gratis.
The Division of Labor Standards Enforcement has opined that industry-standard uniforms – for example, black pants and white shirt for wait staff, or a white nurse’s uniform – may be exempt from the uniform requirement. However, even if courts will enforce these exceptions, they are very narrow. For example, the DLSE refused to extend the nurse’s uniform exception to multi-colored “scrubs.”
Applicable Wage Orders may exempt from the definition of uniform “protective apparel regulated by the Occupational Safety and Health Standards Board.” Therefore, if OSHA regulations require steel-toed boots for a job, they are not a “uniform” merely because the employer mandates them. But when an employer requires “black, steel-toed boots,” going beyond what the safety standard requires, it risks violating the uniform provision.
Finally, employers desiring absolute control over a uniformed employee’s appearance may run afoul of the National Labor Relations Act. Particularly when there is no safety issue or exposure to the public, even uniformed employees may be permitted to wear buttons supporting a union or other matters related to wages, hours, or other employment matters. However, employers’ policies against buttons or other personal expression will receive greater deference when safety, discipline, or customer service are important interests.
Although the definition of “business attire” is decidedly more casual in modern times, employers still may set employee dress codes. As explained above, however, employers must do so without violating the FEHA’s regulations.
California was the first state to forbid dress codes that prohibit women from wearing pants at work. Although such policies are long gone, even modern dress codes encounter difficulty when standards differentiate based on sex. For example, a dress code should not bar skirts “above the knee” if it allows men to wear shorts above the knee. The answer is simply to bar “clothing that reveals skin above the knee.”
Similarly, it is fine to bar sleeveless shirts, but that rule should apply regardless of sex. Women cannot be required to wear dress shoes, if men are permitted to wear sneakers. All that said, a dress code policy must accommodate gender identity or expression.
Finally, dress codes must be carefully drafted to avoid creating “uniform” obligations, as discussed above. Thus, it is dangerous to require “white” blouses, “black slacks,” or other particular colors.