A federal district court in New Jersey recently ruled that an employee’s claims that a grooming policy that contained specific requirements for different genders, while not discriminatory on its face, may be discriminatory in its application under Title VII. Wiseley v. Harrah’s Entertainment, Inc. (D.N.J. 2004).
Wiseley, a Caucasian male, was employed by Harrah’s Entertainment Corporation (Harrah’s) as a waiter. When he began working for Harrah’s in 1985, he had long hair, which he wore in a ponytail.
On April 21, 2002, Harrah’s implemented a new grooming policy, which stated men were no longer permitted to wear ponytails and their hair was to be no longer than one inch over the top of the collar. Employees who failed to comply with the new policy were subject to disciplinary action, including termination. The policy did not include any similar hair length restrictions for female employees.
Wiseley was informed by his female manager that his appearance did not comply with the new policy and that he would be fired if he did not cut his hair. Wiseley contested the policy to the manager, stating it was discriminatory since she was free to wear her hair long. Wiseley alleged that his manager then stated she could wear her hair as she pleased “because [she is] a girl.”
Wiseley did in fact cut his hair to comply with the policy and to retain his job. However, Wiseley alleged that similarly situated black and female employees were not informed of the new policy or made to comply with it. He alleged that “black male employees with long hair could avoid compliance by attributing the length of their hair to religious reasons” and that “similarly situated female employees wore their hair long without clipping or tying it back in any way, and several colored their hair purple or pink in violation of Harrah’s grooming policies,” yet were not disciplined for their noncompliance.
Wiseley filed suit in November 2002, alleging Harrah’s new grooming policy was discriminatory against Caucasians and males under both Title VII and New Jersey antidiscrimination law on its face and in its application. Citing previous case law, which has generally held grooming policies to be outside the scope of Title VII, and by extension the New Jersey statute, the court held that while Title VII aims to protect employees from policies that specifically discriminate on the basis of immutable characteristics that are a fundamental aspect of that person, an individual’s personal appearance and dress is sufficiently within one’s control as to be easily alterable. The court further stated that Harrah’s new grooming policy did not intentionally discriminate against male employees based on immutable characteristics over which they would have no control. To the contrary, Wiseley had full control over the length of his hair, as he did in fact cut his hair and no employment opportunity was lost.
More importantly, the court noted that Wiseley was not threatened with termination because of his gender or his race, but rather because of his status as a long-haired male employee. Harrah’s grooming policy, on its face, did not make any assumptions about employees’ individual employment capacity, nor did it deny employment to a specific suspect class of employees, according to the court. Wiseley’s hair length was not a fundamental aspect of his gender, nor was it outside his ability to alter it. Thus, the court found the subject policy did not warrant Title VII protection. The court found, however, that the question about whether the policy was enforced evenhandedly involved a genuine issue of material fact and could proceed.
The court further reaffirmed sex-specific grooming standards are permissible under Title VII so long as the policies and standards are “enforced evenhandedly.” The court clarified that the “evenhanded enforcement” approach does not require identical standards for each sex. Rather, a policy would be considered “evenhanded” if it contained similar restrictions for both sexes.
Employer Notes: Employers must exercise caution when implementing or enforcing a policy that only affects certain employees, either as written or as applied. Employers would be wise to devise and implement grooming policies which apply universally to all employees (i.e., neat attire) in addition to any standards which may apply to only one gender or class. While employers can never escape the potential of litigation, consulting with legal counsel prior to implementing or enforcing a class-specific policy will greatly reduce any potential risk.
Submitted by Burton F. Boltuch, Founder, The Law Offices of Burton F. Boltuch. You can contact Mr. Boltuch at bboltuch@workplacelaw.biz.
Reprinted from Council’s Personnel Law Update newsletter. Click here to order a free trial or subscribe.
Council's Employment Law Certificate Program for HR Professionals is a 4½-day event that will provide you with a comprehensive overview of all aspects of employment law, including a session on employee handbooks and policies. For more information on this program, including a detailed agenda, dates, and locations, click on the link above.