Laws on workplace whisk’rimination can cut both ways

Hayes (2467)Once upon a time, November was a month for solemn remembrance of a fruitful harvest. Today, however, the focus has shifted from the bounty of the harvest to the stubble of the harvester.

Known by some as “Movember” (mustaches in November) and others as “No-Shave November,” this month is all about whiskers.

For some grizzly men, the motives are pure: Create a platform to draw attention to men’s health issues. For others, it is just a great opportunity to be lazy. And then there are those who seemingly correlate the number of producing hair follicles with the degree of masculinity in a month long competition to prove manliness.

Regardless of motives, November’s bonanza of beards can cause consternation in the workplace. It is not surprising that many employers have “grooming and appearance” policies forbidding or regulating things like facial hair. But can the bearded brethren cry foul if an employer attempts to forbid whiskers in the workplace?

There has been a significant increase in the number of appearance-based discrimination claims filed in recent years. However, there are currently no federal or Tennessee statutes automatically prohibiting appearance-based workplace discrimination.

Employee grooming requirements are generally permissible as long as they are enforced in a nondiscriminatory fashion. Employers must ensure grooming policies do not adversely impact any employee because of their race, gender, age, religion or other protected class.

In fact, an employee who refuses to shave because of religious convictions may have a legal challenge to his employer’s “clean-shaven” policy. In evaluating the challenge, the court will consider whether the employee’s religious belief is “sincerely held,” whether the employer’s policy serves legitimate business interests, and whether the employer could have reasonably accommodated the employee’s belief without undue hardship.

For example, a bearded applicant who was denied a restaurant manager position sued, claiming his Sikh religion prohibited shaving. A federal court found that, even if there was a sincere religious belief, clean-shaven personnel could be necessary for success in the restaurant business, and there was no way to provide the applicant with an accommodation. As a result, judgment was entered for the employer.

To the contrary, if the same applicant with the same religion had been denied an office job simply because the employer believed the “clean-shaven” policy promoted discipline, the court may have required the employer to accommodate the employee’s religion.

As “No-Shave November” hits fever pitch, the number of beards in the workplace may hit a record high. But our modern-day pilgrims should check their employee handbooks before donning the goatees.

See this article in the Knoxville News Sentinel’s Sunday, November 16 edition.

Janet Hayes, a shareholder in the Knoxville office, is an advocate for employers and businesses across the state. Ms. Hayes has successfully defended employment claims including sexual harassment, retaliatory discharge, discrimination, workers’ compensation, invasion of privacy and denial of benefits.  In addition to her employment law practice, Ms. Hayes is actively involved in complex litigation, including class action and collective action defense.


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