Are employers losing the battle to define a company image? The Equal Employment Opportunity Commission (“EEOC”) filed a lawsuit against an insurance claims company for revoking a job offer because the applicant, who is “black,” refused to cut off her dreadlocks. This comes on the heels of the National Labor Relations Board’s recent administrative law judge decisions overruling employers’ prohibitions on baseball caps and derogatory t-shirts.
What’s wrong with prohibiting dreadlocks? The company’s policy requires employees “to be dressed and groomed in a manner that projects a professional and businesslike image” and goes on to prohibit “excessive hairstyles or unusual colors.” According to the EEOC, the policy itself is not unlawful, but when the company used the policy to prohibit dreadlocks, it committed race discrimination against the applicant, because she was black. In a press release, an EEOC official elaborated that companies must take into account differences in texture between black and non-black hair when creating and implementing grooming policies. It is unclear whether the EEOC would demand an employer allow a non-black employee to sport dreadlocks, an afro, cornrows, or other styles more common among black employees.
Litigation over dress and grooming policies is not new. Often, employers have been required to deviate from these policies as a “reasonable accommodation” for an employee’s religious practices, such as to allow a Muslim employee to wear a hijab. (Abercrombie & Fitch recently lost a federal lawsuit brought by the EEOC for refusing to allow a Muslim employee to wear a hijab. The Tenth Circuit reversed that decision because the employee never actually requested the accommodation.) While federal law requires an employer to reasonably accommodate religion (and disability), it does not require reasonable accommodations for race. Thus, the EEOC will need to show that the insurance claims company’s actions were actually race discrimination, not just a failure to accommodate. Time will tell whether the EEOC can meet this standard.
In this era of (over)zealous and creative enforcement of existing laws by state and federal agencies, employers must be more vigilant than ever at protecting themselves. When drafting company policies, especially those particularly vulnerable to agency scrutiny, be sure to narrowly tailor your rules, explain any special factors (such as safety) that justify your rules, and leave room for exceptions to comply with legal requirements.
Brody and Associates regularly provides counsel on civil rights issues and employment laws in general. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.
