Legal Clinic and the Dress Code

Question: One of our workers has begun wearing his hair in a dreadlocks style to work. This is against our organization's dress code, which is very conservative in nature. That said, we also want to respect diverse cultures and peoples' desire to express their diversity of culture, but doubt that his decision to wear dreadlocks is a reflection of this because he does not self-identify as African American, African or Caribbean. Are we legally permitted to require him to change his hairstyle at work -- or even ask him to change it?    

Monday, February 10, 2014
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Answer:  You may be able to ask your employee to change his hairstyle. However, if the employee wears dreadlocks due to his religious beliefs, then your organization should engage him to find a reasonable accommodation for his dreadlocks, unless doing so would cause undue hardship.

Employees often challenge violations of grooming policies under: (i) the First Amendment right to personal expression; (ii) the Fourteenth Amendment right to equal protection and due process (based on religious or gender discrimination); (iii) Title VII, 42 U.S.C.A § 2000e, where courts interpret grooming policies as part of employees' "terms and conditions of employment;" and (iv) state statutes similar to Title VII.

Employers can prohibit hairstyles that incorporate "artifice" so long as they do not prohibit any immutable characteristics. Rogers v. Am. Airlines, 527 F. Supp. 229, 232 (S.D.N.Y. 1981) (upholding the airline policy prohibiting a flight attendant from wearing corn rows). As hairstyles in general are considered to be an "easily changed characteristic" and are not limited to a particular race or gender -- although they are often commonly associated with a particular race -- employers can generally prohibit hairstyles under grooming practices when they are worn for purely cosmetic reasons.   

The assumption that dreadlocks are a reflection of race or culture is somewhat misplaced. Often when the EEOC and courts review an employee's discrimination claim for the right to wear dreadlocks, the employee brings the claim on religious -- not racial -- grounds. Rastafarian beliefs mandate that men should not cut their hair, so Rastafarians (who, by the way, can be of any race) view their dreadlocks much in the same way as practicing Jews view their yarmulkes and practicing Muslims view their headscarves. Thus, regardless of your employee's racial background and cultural affiliation, he may nonetheless wear dreadlocks as an expression of a religious belief.

When an employee wears dreadlocks in furtherance of a religious belief, "the law forbids discrimination when it comes to any... term or condition of employment," such as a grooming policy. As EEOC Guidance provides, Title VII prohibits workplace or job segregation based on religion, and this includes "religious garb and grooming practices." The onus, however, is on the employee to bring his religious belief to his employer's attention and raise it in the context of a conflicting employment requirement. See Lord Osunfarian Xodus v. Wackenhut Corp., 626 F. Supp. 2d 861, 864 (N.D. Ill. 2009). It appears that your employee may not have done so here because you did not associate the hairstyle with religion at all.

EEOC guidance provides that "unless it would be an undue hardship on the employer's operation of its business, an employer must reasonably accommodate an employee's religious beliefs or practices. This such things as dress or grooming practices that an employee has for religious reasons . . . such as Rastafarian dreadlocks." (emphasis added). Examples of accommodation of dreadlocks include wearing a hat or pulling the dreadlocks back in a rubber band. For example, a New York employer accommodated practicing Rastafarian security officers by allowing them to wear dreadlocks in a neat, tight ponytail so that their uniform hat could rest on the head. EEOC v. Grand Central P'ship, Inc., No. 11-cv-9682 (S.D.N.Y. Aug. 7, 2009). An undue hardship is more than a de minimis cost or burden. Unless the wearing of dreadlocks is costly or compromises the safety or efficiency of your operations, it likely does not pose an undue hardship, and an accommodation must be granted to avoid a lawsuit.

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Your organization should take this opportunity to revisit and review your dress code/ grooming policy and its enforcement. A model personal appearance and conduct provision includes language requiring a "neat, well groomed appearance" or a requirement that employees are "groomed and attired in a business-like manner that is appropriate to their job." It is vital that the policy is uniformly enforced, so take note of any other employees with less conservative hair or piercings who have not been cited for a violation of the policy.

In the future, if an employee asks for a grooming accommodation for religious reasons, inform the employee that you will make reasonable efforts to accommodate his or her religious practices. Train your managers and supervisors on how to recognize a request for an accommodation and develop a standard internal procedure for processing these requests. When it comes to potential discrimination claims, it pays to have a plan and a process.

Keisha-Ann G. Gray is a partner in the labor and employment law department of Proskauer in New York and co-chair of the department's employment litigation and arbitration practice group. Proskauer Associate K.M. Zouhary assisted with this article.

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