Section 16 Grooming and Dress Codes

• Library: Employment Discrimination 2008

Employers often maintain and enforce policies relating to the dress and grooming of their employees. These policies are often the root of legal actions, though not all are brought under sex discrimination theories. See, e.g., Kelley v. Johnson, 425 U.S. 238 (1976) (civil suit brought by police officer challenging hair length policy under the First and Fourteenth Amendments). When brought under a claim of sex discrimination, suits have challenged policies covering such diverse subjects as hair length, facial hair, jewelry prohibitions, and dress code enforcement.

Courts have usually been reluctant to find that hair length policies constitute unlawful sex discrimination under Title VII. See Tavora v. N.Y. Mercantile Exch., 101 F.3d 907 (2^nd Cir. 1996), cert. denied,
520 U.S. 1229 (1997). Courts tend to rule that Title VII and its sex discrimination provisions only apply to immutable characteristics, not to ones that are directly controlled by the employee. See Fagan v. Nat’l Cash Register Co., 481 F.2d 1115, 1125 (D.C. Cir. 1973). Courts tend to view Title VII provisions as aiming to ensure that all have equal employment opportunities. As one court has stated, “[Title VII seeks] only to give all persons equal access to the job market, not to limit an employer’s right to exercise his informed judgment as to how best to run his shop.” See Willingham v. Macon Tel....