“Hair Today? Gone Tomorrow!”: Employers Face Obstacles when it Comes to Enforcing Look Policies

Your author joined the ranks of the bearded in January after six years of daily shaving for the Air Force, skillfully concealing his newfound hirsuteness amid the current popularity in facial hair (see: Special Forces members, hipsters, baseball players). For many others, though, beards, uncut hair, or other grooming practices are not personal preferences, but rather religious obligations. On the other hand, many employers wish to convey a certain image to the public or have safety concerns addressed through grooming standards. 

The intersection of these interests defines when employers (or the government) may impose grooming requirements on individuals. Employers should tread lightly and seek experienced guidance in this area of the law; a recent suit against the world's largest package delivery company shows EEOC enforcement priorities in light of recent developments in this area of the law.

Stubble Trouble for UPS

On July 15, the EEOC sued UPS for allegedly discriminating against applicants and employees whose religious practices clashed with appearance rules. (Poor UPS, they’ve had a rough year.) One allegation is that male employees in customer contact or supervisory positions were prohibited from having beards or hair below their collars. Some employees who requested religious accommodations were allegedly forced to wait in lower-paying jobs while the employer decided upon their requests, and others allegedly were told that they would have to cut their hair or shave their beard to get their desired positions.

A Rapidly Growing Area

The EEOC’s suit against UPS comes on the heels of other recent developments in this area. Most notable is the recent US Supreme Court decision involving Abercrombie & Fitch's complete ban on all head coverings as part of its "Look Policy." Abercrombie & Fitch had used an applicant's wearing of a hijab as a factor in choosing not to hire her. The applicant never asked for an accommodation that would permit her to wear the hijab. In its ruling, the Court expanded the scope of religious accommodation by holding that an individual need only show that her need for an accommodation was a motivating factor in the employer's decision-making process, not that the employee had asked for and been denied an accommodation or that the employer even had knowledge of the need for an accommodation. (After the Court remanded the case to the appellate circuit, the EEOC and Abercrombie & Fitch settled that suit on July 21, 2015.)

Earlier this year, the Supreme Court also held that prisoners must be permitted to grow and maintain beards as an accommodation under the Religious Land Use and Institutionalized Persons Act of 2000. The Court held that an Arkansas law banning a 1/2 inch beard was not the least restrictive means to promote prison safety.

Similarly, the Department of Defense has been venturing into unshorn territory for the military over the last few years by expanding and clarifying its exceptions to grooming standards to allow for religiously-required short, well-groomed beards and head coverings. Many feel the new regulations do not go far enough, and they have been the subject of lawsuits.

What’s An Employer to Do?

As background, employers must provide a religious accommodation to an employee unless the accommodation would cause the employer undue hardship. However, "undue hardship" is not an easy standard for employers to meet. Case law and EEOC guidance on religious garb in the workplace makes clear that customer preferences, the employer's desires for a certain public image, and the need for an employer to make an exception to its uniformly applied dress and grooming standards are all not considered undue hardships. Generally speaking, an undue hardship requires an employer to prove that accommodation would cost the employer greater than normal personnel costs, or to prove a health or safety concern (such as a long skirt near manufacturing equipment, or untrimmed and uncovered hair near food).

The recent activity in this area shows not only that "undue hardship" continues to be a difficult standard for employers, but also that failing to accommodate carries real risks. The EEOC is aggressive in pursuing these types of cases. Hiring managers and human resources professionals should consult with legal counsel when addressing such accommodation issues to ensure compliance with this area of the law.