Many consider the way they dress an extension of who they are as a person. Their appearance is a form of self-expression. Sometimes your appearance is even more than this, sometimes it is intrinsically tied to your history and cultural identity.
Appearance, and the legal peculiarities surrounding it, have been in the news lately after an 11h Circuit ruling declared earlier this week that employers can ban dreadlocks at work. The ruling comes after a black woman—Chastity Jones—was denied employment after she refused the would-be employers demand that she cut off her dreadlocks. The company had a policy which blanket forbade “non-professional hairstyles.” The HR representative which spoke with Ms. Jones said that dreadlocks fell under this policy because they “tend to get messy.”
The ruling in this case focused primarily on defining race discrimination—whether race was confined to the biological aspects of race or includes cultural aspects associated with a specific race. However, it has raised the question—when can an employer discriminate based on somebody’s appearance?
Classy Looks Not a Protected Class
Federal law bars employers from taking adverse employment action (not hiring somebody, firing somebody, refusing promotions, etc.) based on a protected classification such as race, national origin, religion, gender, veteran status and disability. You’ll notice that appearance is nowhere in that list. That’s no mistake because, generally, employers are totally free to discriminate based on your appearance.
However, like almost everything in law, there are exceptions to this general rule. Where appearance overlaps with a protected class feature—such as disability, religion, or gender—the rules change a little bit. What’s more, while there are no federal laws protecting against appearance based discrimination, there are a number of local laws that change how an employer must behave.
Obesity and the Americans with Disabilities Act
The Americans with Disabilities Act (ADA) protects against discrimination based on an actual or perceived (by your employer) disability. You may be asking, how does disability relate to appearance? The answer is that the ADA can potentially limit how an employer can discriminate based on appearance when it comes to weight—specifically obesity.
Exactly how the ADA treats obesity is something that varies wildly based on the court and where you are. In some places, morbid obesity is outright protected as a disability, in others its protected only if it stems from a different underlying condition. The same goes for "normal" obesity, with rulings as recent as earlier this year limiting the situations where it counts as a disability. The situation continues to develop and change in the courts—with a trend towards counting all obesity as a disability.
What this means is that, if obese or morbid obesity count as disabilities where you live, your employer must make reasonable accommodations for your disability and cannot take adverse employment action based on your obesity.
Discriminatory Dress Codes?
Most workplaces, like the workplace in the dreadlocks case, have some sort of dress code that they enforce. Where these dress codes are written to be totally neutral, and are neutral in practice, there’s no problem. An employer is, barring the rest of the exceptions discussed in this article, has a surprising amount of leeway when it comes to restricting your appearance as they wish. However, when the code is applied in a discriminatory manner, an employer may run into problems.
First and foremost, a dress code must be generally applied. Dress codes that single out either an individual or a protected group—such as gender or religion—are a no-no. For instance, your employer is not allowed to enforce a dress code that either explicitly, or in effect, unfairly burden one gender more than another.
However, employers are often allowed to apply different dress codes to men and women—cases have dealt with issues such as codes requiring makeup for women only. Employer codes can also generally enforce required weight and height so long as it is neutrally applied to men and women. They can also generally enforce grooming requirements and the covering up of tattoos and body piercings. A workplace can even require, so long as there are legitimate business requirements, “sexy” clothing and uniforms.
Employers must make reasonable accommodations—any accommodation that would not cause undue hardship for the employer—for religious garb and grooming within the workplace. Employees may also often insist on standards of modesty based on their religious beliefs.
The law also requires an employer to allow an employee to express their gender identity through accepted characteristics—although employers can require work clothing to conform to accepted social norms.
Where Appearance Discrimination Meets Other Kinds of Discrimination
So we’ve established that the law does not protect your appearance, employers have a great deal of leeway in limiting your appearance and—perhaps not surprisingly—hiring, firing, or refusing promotions based on your appearance.
An employer can’t, however, make adverse employment decisions based on your appearance where that determination also is founded on gender stereotypes or discrimination against religious garb or grooming.
There are a few places where appearance based discrimination has some teeth based on local laws. The state of Michigan forbids discrimination based on obesity. There are many cities which prohibit discrimination based on height, weight, or physical characteristics. These cities include: San Francisco and Santa Cruz in California, Madison in Wisconsin, Binghampton in New York, and Urbana in Illinois. Washington DC takes a slightly different approach, forbidding discrimination based on outward appearance subject to business requirements or standards.
Massachusetts has introduced legislation to prevent weight or height based discrimination several times, as recently as last year, but has yet to succeed in passing such a law. Their most recent attempt at such a law would also have prevented discrimination based on “a person’s gender-related identity, appearance or behavior, whether or not that gender-related identity, appearance or behavior is different from that traditionally associated with the person’s physiology or assigned sex at birth.”
Why Isn’t Appearance Protected?
Beyond these local rules and overlap with protected classes, your appearance is not protected from discrimination under the law. The legal reasoning behind this is that it does not check the required boxes to be a protected class.
Protected classes are generally immutable characteristics of a class that has historically been discriminated against. The way you dress or groom yourself can be easily changed and is thus not a likely candidate for a protected class. The same approach is generally taken with weight, although this ignores medical afflictions which may prevent a person from losing weight.
Height is a bit of an odd one, while it is certainly immutable, there could be some question as to whether it has been historically discriminated against—although very short and very tall people may think differently. The issue has been more and more addressed locally and, as the dreadlocks case shows, is beginning to be more visible on a national scale. Perhaps soon we’ll see federal law outlining exactly how much of appearance is protected from discrimination. However, given how long the federal government has been silent on this issue, I wouldn’t hold your breath; it is likely to remain primarily an issue of state and local law for the foreseeable future.
Authored by Jonathan Lurie, LegalMatch Legal Writer and Attorney at Law
On 7/1/2018, Massachusetts’ Act to Establish Pay Equity will come into effect. Frequently billed as the strongest wage equality law in the United States, most of the media coverage of the Act focuses on its rules about discussing salary histories. Under the law, employers cannot ask about a job candidate’s salary history until a job offer is extended. It also allows employees to share salary information without fear of punishment. The goal of this provision is to put all candidates and employees on equal footing in salary negotiations—regardless of race, religion, disability, national origin, or gender.
However, the salary history provision is only one part in the Massachusetts law. The law’s requirement of equal pay for comparable work is equally important—and was one of its initial goals.
The History of the Pay Equity Act
Massachusetts has had equal pay legislation since 1945. However, most courts interpreted these laws narrowly, only requiring equal pay for almost identical work. This interpretation permitted employers to pay different wages to men and women doing similar (but technically different) jobs. Unscrupulous employers could avoid paying equal wages by making small changes to job duties and titles.
In 1989, a group of 41 female cafeteria workers sued the Everett Public Schools, alleging unequal pay. The cafeteria workers, who engaged in heavy lifting and the sanitization of kitchens, were paid significantly less than male janitors. The case was litigated for nine years. Eventually, the Superior Judicial Court denied the women’s claims, finding that “comparable work” should be narrowly defined to jobs that were very similar.
Beginning in 1998, a group of legislators and activists worked to change Massachusetts’ law to require equal pay for truly comparable work. Governor Charlie Baker finally signed the Pay Equity Act in 2016. One of the Everett cafeteria workers was present at the signing.
What Is Comparable Work?
The Pay Equity Act requires employers to pay equal pay for comparable work. It defines “comparable work” as “work that is substantially similar in that it requires… similar skill, effort and responsibility and is performed under similar working conditions.” A finding of comparability cannot be limited to a review of job titles or job descriptions. Under the new Act, it is likely that the Everett cafeteria workers would have been entitled to equal pay.
Additionally, the Pay Equity Act prevents an employer from reducing a worker’s seniority due to Family Medical Leave Act time off (including time off for pregnancy and caregiving duties).
Why Is Equal Pay For Comparable Work Important?
57% of American women are in the workforce. Today, more women earn college degrees than men. However, statistics show that women are regularly paid less than their male counterparts. The Massachusetts law, along with the Lilly Ledbetter Fair Pay Act, and recent state laws in New York and California are an important recognition of the value of all American’s work.
Many Americans are familiar with the concept of equal pay for equal work. The media has publicized high profile claims by female professional athletes (most recently the U.S. Women’s national soccer team) who have fought for equal compensation. However, the average American woman still earns $0.79 to a male worker’s $1.00. This number is even lower for some women of color.
This inconsistency is multi-factorial. Women are more likely to work part-time. They are also more likely to be the targets of caregiver discrimination and subtle gender bias. Some employers assume that women are more likely to be distracted by family obligations, leading to a decrease in promotions and job responsibilities. These stereotypes have also led to an increased push for paid leave and other legal protections for mothers, fathers, and other caregivers.
The Massachusetts law is a significant strengthening in equal pay protections and may cause a ripple effect through other states. Thirteen states and the District of Columbia have already enacted laws prohibiting pay secrecy. Reframing salary discussions may increase pay equity. Giving workers the legal right to equal pay for comparable is another important tool.
It is also worth noting that equal pay laws protect all Americans, not just women. If a man believes he is receiving unequal pay for comparable work, he may also have a legal claim. As Dorothy Simonelli, one of the Everett cafeteria workers commented, ““I have 10 grandchildren – five boys, five girls,” Simonelli said. “This is for them and all the future women in the workplace. R-E-S-P-E-C-T.”
Authored by Leigh Ebrom, LegalMatch Legal Writer
How often do you wish you could post a tweet telling your boss and your workplace exactly what you really think of them? How many of you have actually done just that? In March of this year, the National Labor Relations Board (NLRB) ruled on an issue involving just that. An employee of Chipotle, James Kennedy, took to twitter to air his grievances about what he considered to be poor working conditions and unfair wages in his job at Chipotle.
Upon seeing the tweets, Chipotle demanded, pursuant to their social media policy, that Mr. Kennedy take down the tweets critical of their business. Their social media policy forbad Chipotle employees from posting “incomplete, confidential, or inaccurate information and making disparaging, false, or misleading statements.”
Mr. Kennedy took down the tweets in response to his manager’s demands. However, after he was fired a few months later for circulating a petition among employees demanding they be provided legally mandated break time, Mr. Kennedy brought his case before the NLRB. The fact that Chipotle forced him to take down these tweets was among his grievances.
The March NLRB ruling held that the policy was a violation of the National Labor Relations Act (NLRA)—a sweeping federal law which is designed to protect the collective bargaining rights of employees. Among the many protections offered by the NLRA is assurance of an employee’s right to discuss workplace conditions or act as a group to convince management to fix workplace issues. The NLRB felt that Chipotle’s social media policy was a violation of these guaranteed rights.
This shouldn’t have come as a total surprise to Chipotle. The NLRB has advised employers that certain types of social media restrictions would violate the NLRB since as long ago as 2012. However, this was one of the first cases where the NLRB enforced those warnings. Don’t post that tweet just yet though, just last month the NLRB made some serious updates to its initial ruling.
The NLRB’s August Reversal
Just last month, the NLRB changed course on Mr. Kennedy’s tweets. Many of the tweets he was forced to take down were ruled to not be an issue under the NLRA because they either didn’t involve work-related concerns or weren’t part of a concerted employee effort to fix something wrong in the workplace.
However, don’t worry too much about Mr. Kennedy. The August ruling also found that firing Mr. Kennedy over distributing his petitions independently violated the NLRA and required Chipotle to rehire him and pay his lost earnings.
What’s more, while Mr. Kennedy’s specific tweets didn’t create a situation where Chipotle was violating his rights, the NLRB has stuck to its guns as to the Chipotle’s social media policy. The August ruling upheld the judge’s original finding that Chipotle’s social media policy itself violated the NLRA.
Fortunately for employers and employees alike, the NLRA ruling also provided a bit more guidance as to the exact issues with Chipotle’s social media policy—breaking down nearly every word of Chipotle’s policy and explaining why it violated the NLRA.
The Dos and Don’ts of Social Media Policies under the NLRA
First, the ban on sharing confidential information is a no-go. However, the NLRB didn’t put a stop on any limitation of sharing confidential information through social media. As you might imagine, companies have a serious—and very legitimate—interest in keeping confidential material secret. The issue the NLRB took with the policy is the failure to define exactly what constituted confidential material. This meant that the scope of the restriction could include speech protected by the NLRA.
The restriction on disparaging language in the Chipotle social media policy was similarly found to be too broad to be acceptable. Once again, the lack of definition left too many possibilities for abuse. This means that some restrictions on posting things that place a company in a poor light might be acceptable—so long as the restrictions do not prevent employees from speaking to issues within the workplace.
The rest of the restrictions—forbidding false, incomplete, inaccurate, or misleading posts—are explicitly forbidden in social media policies by the NLRB. There is previous case law which prevents employers from implementing policies which bar social media posts on the grounds of a false or misleading nature. There must first be proof that the employee had a malicious motive in making the post before the employer can force an employee to take down a social media post.
Finally, the NLRB ruled that a disclaimer isn’t enough to make a social media policy comply with the NLRA. Chipotle’s policy included a disclaimer which explicitly stated that the social media policy didn’t prevent any post which was protected under the NLRA or any other laws. However, the NLRB ruled that a catchall provision isn’t sufficient to make a policy legal where there are specific elements—such as the restrictions on false or misleading posts—which violate the NLRA.
Since the original ruling in March, Chipotle has updated its social media policy to one that it says complies with the requirements of the NLRB. However, it seems very likely that this case may be the tip of the iceberg for a number of cases involving social media policies to come—only time and tweets will tell.
Authored by Jonathan Lurie, LegalMatch Legal Writer and Attorney at Law
There’s cases of sex discrimination and then there’s cases that sound like they’re straight out of the show Mad Men. Earlier this month, the Federal District Court ruled in a summary judgment in favor of a lawsuit alleging, among other things, hostile work environment and retaliation. The lawsuit was brought by Ms. Vicki Conforti, the lone female manager of a company called On Site Energy and Sunbelt Rentals—On Site had been bought out by Sunbelt shortly before she was fired. The facts of the case show a particularly grotesque work environment and Ms. Conforti alleges that she was fired for not playing along with this boys' club.
Ms. Conforti’s complaint describes a work environment which included pornography being played in the office, frequent propositioning of female employees by her fellow managers (although she herself was not propositioned), and at least one incident of bringing in a stripper to perform during the work day. She alleges that, despite complaints about being propositioned, On Site failed to implement any policies or procedures to deter sexual harassment and discrimination. Female employees at the company were allegedly, to a woman, paid less than their male counterparts, received less benefits than their male counterparts, not invited to corporate outings, and not reimbursed for business expenses.
Given the rest of her story, this is not surprising. On Site was acquired by Sunbelt. in 2014, and Ms. Conforti’s title was changed from Controller for the entire company to assistant manager. Even while she was Controller for the whole dang company, no men were required to report to her. After her demotion, Ms. Conforti was denied access to codes required for her work, excluded from training sessions, and not invited to management meetings, including meetings about her own department. She was also belittled in front of other staff members, with her decisions overridden and, at least once, work she had done publicly destroyed. Her complaints fell on deaf ears.
In a meeting with two of the company VPs, Ms. Conforti was told—in front of her attorney—that her title had too much responsibility for a woman. They suggested that she take a less important position. When she complained, Ms. Conforti was informed that she was “being too aggressive and overreacting” and it was suggested that she “should assume the submissive role expected of females and play nicely within the boys’ club.” After more complaints, Ms. Conforti was stripped of all authority, moved away from the rest of the employees, and constantly taunted by management.
Quotes from management during Ms. Conforti’s time with the company also paint a pretty damning picture. Comments from male management include saying that they don’t want too many women on the job as they are “excessively emotional and moody” and a women’s proper position being “behind that of men.”
After all this, and quite a bit more that there simply wasn’t space for, Ms. Conforti was fired—along with four other female employees. No men were fired during this period; all the positions were filled by men.
Sex Discrimination Explained
You probably look at all this and think, “what a slam dunk for gender discrimination.” However, the complexity of the situation may surprise you. The court agreed to dismiss all of Ms. Conforti’s state law claims and made a fairly close call on several of her Title VII claims. To understand why, let’s look at the elements of discrimination, retaliation, and hostile work environment claims.
In order to pass muster on a motion to dismiss, a plaintiff has to show that a reasonable jury could plausibly find enough evidence for all elements of their claim. The elements of a Tile VII discrimination claim are: (1) the employer took adverse action against them, and (2) their race, color, religion, sex, or national origin was a motivating factor in the employment decision.” An adverse employment action is, somewhat prosaically, an action that a reasonable employee would significantly harm them. The Supreme Court has specifically said that it can include termination and demotion. However, reassignment or changes of job duties generally is not sufficient. There must be evidence that the job duties an employee is switched to are somehow worse or more onerous. Case law says that being denied codes, access to meetings, and similar things are not enough.
Site and Sunbelt argued that the only adverse action taken against Ms. Conforti was her firing—her demotion, taunting, and change of responsibility didn’t count and couldn’t be considered. What’s more, they said that the fact that her firing was two months after any of her complaints countered any evidence she might have that the motive behind firing her was discriminatory.
In this case, while being fired was obviously an adverse employment action, moving Ms. Conforti and reducing her responsibilities was not enough to fit the bill in a discrimination claim. However, as we will see later, it likely would be enough for a retaliation claim as the standard for adverse action in retaliation claims is lower.
The next element that be shown is a discriminatory motive. This doesn’t necessarily require direct evidence of discrimination—such as an employer telling you you’re being fired for being a woman. It can also be established through circumstances which give rise to an inference of discrimination such as degrading speech about a protected group in the workplace, preferential treatment to employees not in the protected group, the events leading up to the employee being fired, showing a mishmash of many different instances of discrimination and more.
The judge in this case felt that, despite the time gap, the “mosaic of fact” showed a clearly discriminatory environment which, by itself, was enough to show a probability of a discriminatory motive in Ms. Conforti’s firing. What’s more, in the 2nd Circuit, the very fact that somebody was replaced by somebody not of a protected class—a man in this case—is enough to show at least a probability of discrimination. This probability is enough to let the case reach a jury.
Title VII Retaliation and Hostile Work Environment Claims
Retaliation claims require a showing that an employee was engaged in a complaint against their employer under Title VII and their employer took adverse action against them because of this complaint.
The executives of On Site left the door wide open to a retaliation claim by their own actions at a meeting with Ms. Conforti’s attorney. At this meeting, they directly said that Ms. Conforti was incapable of her job because she was a woman. Immediately after that meeting is when they moved her desk, took away her responsibilities, and began to mercilessly taunt her at work. A two-month gap in time between her complaints and her firing was not enough because, unlike discrimination, all the taunting and ridicule count as retaliatory action.
A Title VII hostile work environment claim requires a showing that the conduct of the accused party: 1) creates an environment that a reasonable person would find hostile or abusive; (2) creates an environment ‘that the plaintiff personally finds hostile or abusive’; and (3) ‘creates such an environment because of a protected aspect of the plaintiff—such as their sex.. To show that conduct was objectively severe or pervasive, a plaintiff ‘“must demonstrate either that a single incident was extraordinarily severe, or that a series of incidents were ‘sufficiently continuous and concerted’ to have altered the conditions of her working environment.”’
Ms. Conforti’s allegations made this claim a slam dunk to reach a jury. The mere presence of pornography in the work place has been ruled to be enough to find a hostile work environment for women—never mind bringing in strippers.
The Case Moving Forward
Ms. Conforti will be able to take her allegations to a jury. However, this case is far from over. While the defendants are accused of a pretty grotesque attitude towards women, connecting the dots between this attitude—as well as anger over the claims brought against them—and Ms. Conforti’s firing will be more of an art than a science. The circumstances, taken together, can be strong evidence. However, without a smoking gun, it will be up to a jury to decide if they’re convinced that Ms. Conforti was a victim of a boy’s club mentality.
Authored by Jonathan Lurie, LegalMatch Legal Writer and Attorney at Law
LegalMatch publishes new articles on employment law on a weekly basis. However, we have so many different avenues that its difficult to keep track of everything. Here's a summary of what we've published from August 1st to August 8th:
- Roger Ailes, CEO of Fox News, resigned after numerous women made allegations of sexual harassment against him. What can you do if you're being harassed by a supervisor?
- Everyone gets sick, but not every gets sick because of work. What does your employer owe you if you become ill because of your job?
- Illinois recently changed its overtime laws. Here's what you should know if you're working over the clock.