It could be because an outstanding employee shows up one day with a new purple mohawk and matching nose ring. Or maybe for health-care costs, the company wants to ban employee smoking on and off the job. Or because two high-performing employees end up dating. Sooner or later, HR will have to look at what it can and can’t dictate in employees’ lifestyle choices. Caution: The laws are beginning to favor employee freedom over employer mandates. Jeff Tanenbaum, partner at San Francisco-based employment law firm Littler, Mendelson, Fastiff, Tichy & Mathiason offers guidelines on what is and isn’t legal.
Are there particular areas of lifestyle issues that employers shouldn’t try to govern at all?
I advise my clients that every decision they make should be work-related. If it isn’t work-related, I think an employer is asking for trouble. It’s far more likely that an employer is going to get a lawsuit over a decision based on a personal preference or bias than over a decision that has its roots in a job-related reason. Let’s look at an example: style of dress. Say an employer is making a decision based on style of dress because the business requires employees to have customer contact-it’s a bank with people working as tellers. If there’s an impact on the business because of how people dress, then that’s a good basis on which to create a dress code. If, however, employees don’t have any client contact at all and the employer is creating some form of dress standard out of personal preference for that type of look, you can anticipate more litigation-and perhaps more successful litigation.
What about really nonmainstream looks, like body piercing-does that change the situation?
Recently I’ve had two clients call me with questions about tongue piercings. In one case, it concerned an individual in a customer-service position. And it was a customer who had brought it to the employer’s attention. The customer was somewhat embarrassed about it, but had said [the piercing] just made her É the word she used was “queasy,” to talk to this person. The other case concerned an individual working in a warehouse setting. The employer had noticed the tongue piercing and asked me what to do in that case. My answer in those two cases was different. In the situation in which there’s customer contact, and it may impact the customers, an employer has a greater ability, and a greater need, to take appropriate action in terms of setting an appearance standard. In the warehouse, if it’s not affecting work, there’s less of a need to do so.
If a company requires a lot of customer contact and does want to institute a dress code, should HR track customer reaction to employees’ appearances? Would it make a stronger case if there were actually negative customer reaction?
There’s no doubt in my mind that you have a stronger case if the company can actually document customer concern as opposed to speculating about that concern. However, having said that, there are so many other things that [HR] needs to do, just in terms of running a business, let alone other important employment-law areas, that I tend to think of dress- and appearance-code issues as things that should only be addressed when they become an issue. There are more important things for [HR] to be spending time on.
How can an employer determine an appearance code’s business necessity?
With a dress code, the very first question an employer should ask is, “Is the dress code safety-related?” Sometimes employers limit loose-fitting clothing or dangling jewelry because it may get caught in equipment. The second question is, “Is the dress code job-related?” To the extent that it isn’t, it raises more questions. The third issue an employer should raise is, “Does the dress code or appearance code discriminate on some basis?” For example: A grooming code prohibits men from wearing facial hair. That policy can have an adverse impact on African-Americans because more African-American males than members of other groups have a skin condition that limits their ability to shave. Another question to ask: “Does the dress code reflect some unwanted stereotype of one sort or another?” Consider a restaurant that has a uniform for men and a uniform for women. The uniform for men is a white shirt and black pants. For women, it’s a low-cut blouse and a short skirt. Is that appropriate? Again, it’s going to depend on what court you wind up in. And it depends on what type of business you’re in, as well.
What other areas of lifestyle issues should employers use caution in trying to govern?
Clearly, there’s a greater sensitivity to sexual-orientation issues in this day and age, especially depending on what part of the country you happen to be working in. In some states, and in some localities, sexual orientation is a protected classification, just like race, sex and natural origin. Even in those areas of the country where it’s not a protected classification, I suggest it’s an issue that in almost all cases is unrelated to the working environment, and thus is something that an employer simply shouldn’t be involved with.
What about policies such as not hiring smokers or not allowing employees to smoke-are those legal?
There has been something of a trend in recent [nonfederal] cases in which employers have been allowed to regulate a lifestyle choice by choosing not to hire a smoker. I seriously question whether that sort of trend is going to continue. I think that’s just the politically correct position today. I wouldn’t encourage employers to go down that path. [As for] an absolute ban on employees’ smoking-in some states and in some localities an absolute ban or close to it is required by law, in which case an employer is going to have to follow that law. Where such a law doesn’t exist, I think it would be an error for an employer to voluntarily establish such a complete ban. A better alternative would be to attempt to accommodate both smokers and nonsmokers. Otherwise, one way or the other, you’re going to adversely impact people who can be very good employees.
If there is a no-smoking policy, can an employer fire an employee for smoking outside the workplace?
I truly believe that any time employers take action that isn’t work-related, they’re looking for trouble. If an employer were to fire an employee for smoking away from the workplace, I think that employee would have a very good case, depending on [the locality]. There are some courts that will allow an employer to make that decision. The rationale of the court might be a belief that an employee who smokes has a greater likelihood of increased absenteeism due to colds. However, again, I think those sorts of decisions are just politically correct today. Does that mean that [the courts would] allow an employer to generally terminate an employee who’s more susceptible to colds? I think most courts would say employers can’t do that.
What about a no-office-romance rule? Is that legally enforceable?
State law differs on that. In general, an employer can limit the ability of individuals engaged in a personal relationship from being in a direct reporting line of command. The reason for that is obvious. You don’t want that personal relationship to interfere with work. The good side of a no-office-romance rule is it’s going to be helpful in avoiding sexual-harassment cases, because at least some of those office romances are going to deteriorate, and one party or the other is going to be unhappy about it. The downside to no-office-romance rules is they’re very difficult to enforce and very difficult to enforce equitably. The employer is going to have some people engaged in an office romance while action has been taken against others simply because the employer knows about some and not others. And when HR finds out about an office romance, how does it handle that? Is it always the person with the more important position who gets to keep that position and the other person has to move on? It’s a very awkward situation and a very difficult situation to deal with. These days, one of the places that people meet is the working environment. Employers will never be able to preclude that completely.
How would you suggest approaching this issue, then?
I’d suggest that employers concerned about this issue have a rule that precludes individuals from working in a direct reporting relationship if they’re engaged in a personal relationship. I’d suggest that they not attempt to interfere with personal relationships in any other way. I’d also suggest that employers remind employees these sorts of relationships are to take place away from the office and should not interfere with work, and that if the relationship does interfere with work, that the employer may then engage them in some form of counseling or disciplinary action. It’s important that such relationships not only don’t distract from those employees performing their work, but also don’t encourage any of those [involved] to engage in favoritism.
Is there a guiding principle?
If it’s not work-related, employers shouldn’t go there. Some courts would uphold their actions. But I think there are more important things for employers to be doing.
Workforce, November 1997, Vol. 76, No. 11, pp. 69-72.