Dress and Grooming Codes: Legal Issues
by Gerard Panaro, BOL Guru
As a recent case from the Fourth Circuit illustrates (the U.S. Court of Appeals for the Fourth Circuit includes both Maryland and Virginia), dress and grooming codes are subject to challenge under a number of statutes and employers must make sure that in addition to being nondiscriminatory on their face, such policies are also applied in a nondiscriminatory way.
In Booth v. Maryland, 327 F.3d 377 (C.A.4 (Md.), 2003), the Fourth Circuit held that although the plaintiff did not state any claim for defamation, he may have stated a claim for discrimination on the basis of race and religion in the way the corrections department's dress and grooming code was applied to him.
The plaintiff was a prison guard employed by the state (Maryland). For this reason, the case raises constitutional issues that would not be present in strictly private sector employment. The plaintiff was subjected to disciplinary action for wearing his hair in dreadlocks in violation of the dress code and grooming policy. He alleged religious and racial discrimination as well as a state law claim for defamation.
The Division of Pretrial Detention, where the plaintiff worked, had in place a dress code and grooming policy which read:
a. Hair shall be neatly groomed. Hair in front shall be groomed so that it does not fall below the band of the properly worn uniform headgear. Hair on the back of the head may not extend further than one quarter inch onto the collar. Hair on the side of the head may touch but shall not extend onto the collar. In no case shall the bulk, length, or height of the [hair], interfere with proper wearing of authorized uniform headgear, emergency equipment, or styled to impair the employee's vision. The length[,] bulk, or appearance of hair shall not be excessive, ragged, or unkept.
b. (Females) Buns, braids and ponytails shall be permitted on top of the head or back of the head, in a neat manner, provided they do not interfere with the proper wearing of authorized uniform headgear or emergency equipment and do not extend below the collar. Braids and ponytails not secured to the top of the head shall meet length standards outlined in [a].
c. Only traditional (i.e., historically acceptable for military/law enforcement uniformed personnel), haircuts shall be permitted.
The plaintiff's hairstyle did not comport with the policy because he wore dreadlocks. He alleged that he was a practicing member of the Rastafarian religion, in which the growing and wearing of dreadlocks is a tenet. Following a number of requests by the corrections department that he cut his hair to comply with the grooming policy, the plaintiff told his superiors that his Rastafarian religion required him to wear his hair in dreadlocks and requested a reasonable accommodation to wear his hair in accordance with his religious beliefs. However, he was denied his request for a religious exemption to the policy and was informed that progressive discipline would be imposed if he did not comply with the policy. Booth refused to do so and, over the next month, was subjected to progressive disciplinary measures for his continuous violation of the policy.
Faced with the choice of complying with the policy or incurring escalated disciplinary measures, the plaintiff sued the State of Maryland, the Commissioner of the Department of Public Safety and Correctional Services, and four of his superiors on the grounds that their application of the grooming policy to him violated his constitutional right to practice his religion under the First and Fourteenth Amendments and that they enforced the grooming policy against him in a discriminatory fashion because he is an African-American. He also sued for defamation. The lower (district) court ruled in favor of the defendants on all claims, but the Court of Appeals reversed on some of them.
The First Amendment, which applies only to the government (not private sector employers), forbids the adoption of laws designed to suppress religious beliefs or practices unless justified by a compelling governmental interest and narrowly tailored to meet that interest. The First Amendment, however, does not excuse an individual from the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).
The plaintiff argued that the dress and grooming policy, as applied to him, violated his freedom to exercise his religion guaranteed by the First Amendment. More particularly, he alleged that the defendants violated his First Amendment rights by refusing his request for an accommodation to wear his hair in modified dreadlocks, that the request was not unreasonable because similarly situated females are allowed to wear their hair braided and substantially longer than the dreadlocks he wears, and that the defendants have not enforced the policy against approximately thirteen similarly-situated employees who have violated the policy but who have not been disciplined. Additionally, he said that the defendants granted religious exemptions from the policy to one Jewish employee, allowing him to wear a long beard and peyos (long sideburns), and one Sikh employee, allowing him to wear a turban and long beard.
In their motion for summary judgment, the defendants asserted that the grooming policy passed constitutional scrutiny because the policy is facially neutral and rationally related to the Division's goals of promoting safety, uniformity, discipline, and esprit de corps among the correctional staff at the facility.
That's fine, as far as it goes, the Fourth Circuit said, but that doesn't end the case. The plaintiff's claim that the facially neutral policy was being applied in a discriminatory manner because the department granted religious exemptions to others who were similarly situated to him is evidence, "at a minimum," the court said, "that the legitimate secular purposes underlying the policy have been abandoned in a manner that favors other religions over his religion and, therefore, that the policy has been applied to him in an unconstitutional manner." For this reason, the court of appeals sent this aspect of the case back down to the district court "for further proceedings."
The court of appeals did affirm the district court's ruling on the plaintiff's discrimination or "disparate treatment" claim, however. Of the 13 employees who allegedly violated the grooming policy, but who were not disciplined, it was clear that at least four of the seven male employees and three of the nine female employees were African-Americans. Furthermore, the court pointed out, the plaintiffs' claim of racial discrimination in reality rested on his claim that the followers of the Rastafarian religion are predominately African-Americans. "Because Booth [the plaintiff] failed to demonstrate that the defendants enforced DCD 50-43 [the dress and grooming policy] against him in a discriminatory fashion because he is African-American," the Fourth Circuit held, "we affirm the district court's grant of summary judgment to the defendants on Booth's claim of racial discrimination...".
The appellate court also affirmed the district court's judgment for the defendants on the plaintiff's defamation claim. He had alleged that the defendants defamed him by disseminating information that he had violated the policy. To prove such a claim, however, the plaintiff had to show four things:
a defamatory statement to a third person
the statement was false
the defendants knew it was false and
he suffered harm as a result
The plaintiff's claim failed because he couldn't satisfy the second criterion: it was true that he violated the department's dress and grooming policy.
First published [date] in Fair Employment Practices Guidelines, a
semimonthly publication by Aspen Publishers, 1185 Avenue of the Americas.
New York, NY.
About the Author:
Gerard P. Panaro has more than 25 years' experience in employment law and is
available to assist readers on an individual basis. You may reach him at
202-861-1314. Mr. Panaro is of counsel with Howe & Hutton, in the
Washington, DC office.
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As a recent case from the Fourth Circuit illustrates (the U.S. Court of Appeals for the Fourth Circuit includes both Maryland and Virginia), dress and grooming codes are subject to challenge under a number of statutes and employers must make sure that in addition to being nondiscriminatory on their face, such policies are also applied in a nondiscriminatory way.
