The Equal Employment Opportunity Commission (“EEOC”) recently filed suit against a Chicago law firm alleging religious discrimination against a temporary employee who was terminated because she wore a head scarf called a hijav as a tenet of her Muslim faith, in violation of the firm’s dress code.  This case gives an example of how standards pertaining to personal appearance, grooming and hygiene can lead to potential liability for discrimination against an employer. 

Employers certainly have the right to generally enforce personal appearance, grooming and hygiene standards in the work place, but must proceed cautiously when the standards relate to immutable characteristics such as disabilities, or implicate strongly held religious beliefs.  Protected categories that may be implicated by such policies include race, sex, natural origin, age, disability and religion.  An employer is most likely to have its policy upheld where it can articulate a clear, non-discriminatory rationale for its policy that is supported by actual facts.  Legitimate business rationales could include the employer’s public image, safety concerns, employee morale and productivity. 
It is acceptable for an employer to adopt sex-specific grooming requirements.  Despite the distinction between genders in such policies, courts have upheld such standards because both sexes are being screened with regard to a neutral fact, i.e., grooming in accordance with generally accepted community standards of dress and appearance, and the policies are not, therefore, discriminatory.  Courts also have generally upheld policies which are sex specific as to dress codes, such as requiring the male employees to wear ties, and forbidding the wearing of earrings by a male employee.  Not all sex-specific standards are valid.  For example, in one case, an airline’s weight restrictions for female employees without similar limitations for male employees was found to be discriminatory.  In another case, a female employee successfully sued her employer for a policy which allowed men to wear either business suits or sports jackets and slacks while it required female employees to wear uniforms.  The court found that the employer’s justification for the policy was based on offensive stereotypes prohibited by Title VII.
There have been numerous cases alleging that weight restrictions are illegal disability based discrimination.  Unless, however, the weight standard impacts an individual with a physical impairment that substantially limits one or more major life activities, the policy is not likely to run afoul of the ADA.

The best way for an employer to avoid discrimination claims is to have clear, written policies that are well thought out and justified by the employer.  An employer with a written policy is less likely to be perceived as acting in an arbitrary manner toward an employee who must be disciplined.  Writing the policy also causes employers to think through the reasoning behind the policy.  It is best to keep the policy simple and direct and reserve the right to make special exceptions.  Employers are also less likely to face lawsuits when they have general employment policies which encourage employees to inform management of any necessary workplace accommodations.  Policies which reflect reasonableness and openness to accommodating specific employee needs, where necessary, go a long way to avoiding lawsuits.