Banning beards at work could get a little hairy

The question of whether private companies or public entities may prohibit their employees from wearing beards is somewhat of a head-scratcher. In Willingham v. Macon Tel. Publ?g Co., 507 F.2d 1084, 1091 (5th Cir. 1975), the en banc court ruled that the employer's grooming standards requiring different hair lengths for male and female employees did not discriminate on the basis of sex. The court stated that grooming and hair length policies are more closely related to the employer's choice of how to run its business than to equal employment opportunities. Because hair length is not immutable like race is, it enjoyed no constitutional protection. Courts also have allowed employers to ban "all-braided hairstyles," dreadlocks and "unconventional" hairstyles, despite complaints that these bans racially discriminate against African-Americans. EEOC v. Catastrophe Management Solutions, 11 F.Supp. 3d 1139 (S.D. Ala. 2014).

But job applicants and employees need not take all beard prohibitions on the chin. In Finot v. Pasadena City Bd. Of Educ., 250 Cal. App. 2d 189 (1967), the court deemed a public school teacher's beard a personal liberty protected by the 14th Amendment of the Constitution. The court - lauding Abe Lincoln, Socrates and John Muir, but neglecting to mention Fidel Castro, Fu Manchu and Ivan the Terrible - held that the school board could not ban the plaintiff from wearing a beard unless it showed: The prohibition rationally related to enhancement of public service; the benefits of the restriction outweighed the impairment of the teacher's rights; and no less subversive alternative was available. Because the school board did not demonstrate the adverse effects of facial hair, the teacher was allowed to keep his beard and his job. However, the court noted, "This is not to say that all male teachers at all high schools, regardless of circumstances, may wear beards while they teach in classrooms and that the practice may not be prohibited or otherwise restrained under appropriate circumstances."

Employers that ban facial hair must make reasonable accommodations for employees with religious conflicts. The 9th U.S. Circuit Court of Appeals uses two steps to analyze Title VII claims of religious discrimination. Plaintiffs must establish a prima facie case by demonstrating (1) a bona fide religious belief, the practice of which conflicted with an employment duty; (2) they informed their employer of the belief and conflict; and (3) the employer threatened or subjected them to discriminatory treatment because of their inability to fulfill the job requirements. If the plaintiff establishes a prima facie case, the employer must show that either: (1) it initiated good faith efforts to reasonably accommodate the employee's religious practices; or (2) it could not reasonably accommodate the employee without undue hardship. EEOC. v. Alamo Rent-A-Car LLC, 432 F.Supp 2d 1006, 1010-11 (D. Ariz. 2006). In Bhatia v. Chevron U.S.A. Inc., 734 F.2d 1382 (9th Cir. 1984), the court held that the plaintiff who believed shaving his beard was contrary to his Sikh religion established a prima facie case, but safety concerns made the employer unable to reasonably accommodate him. Therefore, the court affirmed the summary judgment award for the employer.

In Bradley v. Pizzaco of Nebraska Inc., 7 F.3d 795 (8th Cir. 1993), Domino's strict policy against beards was deemed unlawful because of its disparate impact against African-American males, half of whom suffer from pseudofolliculitis barbae (PFB), a medical condition making it painful to shave. The appellate court held that Domino's failed to establish a business justification defense to refute the EEOC's prima facie case. "Domino's is free to establish any grooming and dress standards it wishes; we hold only that reasonable accommodation must be made for members of the protected class who suffer from PFB."

In 2015, the EEOC bristled at United Parcel Service's grooming policies, alleging that they discriminated against male workers and job applicants who wore beards or long hair for religious reasons. According to the EEOC's suit, UPS failed to hire or promote individuals whose Muslim, Rastafarian, or Christian religious practices conflicted with its appearance policies and failed to provide timely religious accommodations to them. EEOC v. United Parcel Service, 15- 04141. Last month, a New York district court judge denied UPS's motion to dismiss the lawsuit. UPS may be in for a close shave.

Appearance standards can pose other legal problems for employers - or, rather, for employers who claim they are really only contractors. Under California law, the right to control work details is an important consideration in determining whether a worker is an employee or an independent contractor. S.G. Borello & Sons Inc. v. Dep't of Industrial Relations, 48 Cal. 3d 341 (1989). One such work detail may be workers' appearances. In Ruiz v. Affinity Logistics Corp., 754 F.3d 1093, (9th Cir. 2014), the court held that truck drivers worked for the defendant as employees rather than as independent contractors, and therefore were entitled to wages, overtime pay, and benefits under the Fair Labor Standards Act and California law. One reason for the court's holding was that the defendant "controlled the appearance of the drivers by ... prohibiting drivers from...sporting certain designs of facial hair."

As a practical matter, allowing employees to choose their own hairstyles may improve employee morale at no cost to employers. Recently, Wal-Mart, Starbucks, PetSmart, and Abercrombie & Fitch all relaxed their appearance standards for employees. Jena McGregor, "Companies Ease up a Bit on Worker Dress Codes," The Washington Post (June 8, 2015). Lenient grooming policies also demonstrate sensitivity to minority groups such as Muslims, whose share of the U.S. population is expected to double by 2050. Besheer Mohamed, "A New Estimate of the U.S. Muslim Population," Pew Research Center (Jan. 6, 2016).

To avoid legal challenges and boost worker morale, employers should consider shearing their policies against beards. However, there definitely should be strict laws against mutton chops.