The ever-popular 1968 musical “Hair” proclaimed the wonder of “long, straight, curly, fuzzy, snaggy, shaggy, ratty, matty, oily, greasy fleecy, shining, gleaming, streaming . . . HAIR!” Not surprisingly, many employers have a different view about acceptable coiffures. One such lodging facility is the upscale Allegria Hotel in Long Beach, N.Y. Like many hotels, it has rules concerning appropriate hairstyles for workers. The policy requires that hair be “clean, trimmed, well brushed and neat at all times. Extreme styles” are not permitted, including “beaded, braided or streaked hair.” Only neutral tones are acceptable. Men’s hair must be above the shirt collar. No similar length restriction exists for women.
This policy led to an interesting and informative lawsuit (Visceccia v. Allegria Hotel).
Plaintiff was a line cook at the hotel. During his employment there, he sported long hair. Hotel management directed him to cut it but his locks remained unshorn. He was issued a written warning requiring compliance within two weeks or he would face disciplinary action, including possible termination. Perhaps viewing the biblical Sampson as his inspiration, plaintiff disregarded the warning. He was promptly terminated.
Ample-haired plaintiff took umbrage and sued, claiming gender discrimination because men were required to have short hair while women were not. Additionally, plaintiff observed that two women employees violated the hotel policy by having streaked hair but were not disciplined or terminated. Plaintiff asserts the uneven enforcement of the policy likewise constitutes sex discrimination.
The court addressed both of plaintiff’s beefs, finding one argument valid and the other not. Concerning plaintiff’s first assertion, the law is well established that employers can prescribe different grooming standards for male and female workers, including standards concerning hair length. Said the court, “Minor differences in personal appearance regulations that reflect customary standards of dress and appearance [for each gender] do not constitute sex discrimination.”
The judges explained that the laws prohibiting discrimination are aimed at policies that differentiate on the basis of immutable characteristics that constitute fundamental aspects of a person. Examples include gender, race, color, disability and national origin (protected classes). In contrast, personal appearance and dress are within the control of each employee, and so are not on the same level legally.
The court determined the Allegria Hotel’s regulations reflected reasonable grooming guidelines for the genders and dismissed plaintiff’s first contention.
Unfortunately for the hotel, plaintiff’s claim of selective enforcement was not given such short shrift. The court agreed that, “The grooming policies must be enforced evenhandedly between men and women. True, even though the specific requirements may differ.” Therefore, the selective enforcement claim was not dismissed but rather will proceed to trial (unless the parties settle).
Another fascinating twist: The hotel disputes plaintiff’s assessment of streaked hair. It argued that the hair color of the female employees cited by plaintiff constituted permissible highlights, and both women’s hair was clean, neat and neutral-toned, consistent with the policy. That is a question of fact that will be resolved at trial. This dispute underscores the need for a clearly written and detailed policy.
Here’s the upshot: Gender-appropriate variations in policies for men and women employees are permissible. Selective enforcement among protected classes is not.