Sexual Harassment, Workplace Romances and Dress Codes:

What Employers Need to Know to Avoid Costly Mistakes and Litigation

Deborah Birndorf Zeiler, Esq. BIRNDORF LAW OFFICES

11845 Olympic Blvd., Suite 735WLos Angeles, CA 90064

T: 310.914.8400 | F: 310.914.8480DBirndorf@BirndorfLaw.com

www.BirndorfLaw.com

IHR Virtual Event 2013

Do you need a Dress Code Policy???

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DRESS CODE:The Interview

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The First Day of Work

Do you need a Dress Code?

YES!!

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Sexual Harassment - A Refresher!

n Sexual Harassment is a form of Gender Discrimination

n Gender Discrimination is prohibited by the FEHA (state law) and Title VII (federal law)

n FEHA’s protected class is wider than Title VIIn FEHA prohibits discrimination based on sexual

orientationn Title VII does not – but does prohibit

discrimination based on sexual stereotypes

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Adopt a Dress Policy!!But can you

enforce it??????7

Pros and Cons

n Dress Codes set standards and uniformityn They can avoid sexual harassment claims

But . . .

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What’s in Your Dress Policy??n DIFFERENT STANDARDS FOR MEN AND

WOMENn Be careful about discriminating/sexual

stereotypesn TATTOOS AND PIERCINGSn Be careful of prohibiting tattoos and piercings

because they can have religious or cultural significance.

n What about height and weight restrictions??Court decisions are all over the place!

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DISCRIMINATION AND

SEXUAL STEREOTYPING

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Men versus Women: Can an Employer Require Women to Wear Makeup?

A bartender sued her employer after it enforceda grooming policy that required men to maintainshort hair cuts and women to wear makeup. Shefound makeup to be degrading.

Court held that any stereotype being applied didnot inhibit Jespersen's ability to do the job. "Theonly evidence in the record to support thestereotyping claim is Jespersen's own subjectivereaction to the makeup requirement," the courtclaimed.

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Makeup Not A Burden. . . .Says the Men

n The Court ruled, in effect, that sex-differentiated grooming and dress codes are permissible under Title VII as long as they do not impose unequal burdens on men and women.

Jespersen v. Harrah’s (9th Cir. 2006) 444 F. 3d 1104.

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Not Feminine Enough????Hopkins v. Pricewaterhousen Ann Hopkins came up for partnership at Price Waterhouse. Of

the 88 candidates -- all the others were male -- she had the best record at generating new business and securing multimillion-dollar contracts.

n Yet she was denied after being evaluated as being too "macho" and in need of a "charm school.“ Her bosses said she needed to "walk more femininely, talk more femininely, dress more femininely, wear makeup, have her hair styled and wear jewelry."

n Instead she quit the firm and filed a lawsuit under Title VII of the Civil Rights Act of 1964, which forbids employment discrimination because of a person's sex.

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Hopkins v. Pricewaterhouse (cont.)n In a 6-to-3 ruling, the U.S. Supreme Court held that Price

Waterhouse had based its decision in part on unlawful sexual stereotyping.

n "An employer who objects to aggressiveness in women but whose positions require this trait places women in an intolerable and impermissible Catch-22: out of a job if they behave aggressively and out of a job if they don't."

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I’m Too Sexy For My Shirt . . .

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Debrahlee Lorenzana, a former Citibank employee, filed a complaint alleging sex discrimination and retaliation.

Although she always dressed in compliance with Citibank’s dress code, management almost immediately began making comments about Debrahlee’s appearance and dress.

She was told that she should not wear pencil skirts, turtlenecks, or business suits that showed her “figure” and that her pants were too tight.

Too Sexy (cont.) . . .She was told that her manner of dress was not appropriate because she drew too much attention.

She protested stating that she was wearing business attire and in compliance with the dress code. She alleges that she was told that her body was very different from the others and that is why it was ok for others to dress like that, but not for her to dress that way.

Citibank transferred her to another location that was out of sight of customers. However, her job was to bring in new business, so she was eventually fired when she was unable to meet her quota.

The case is pending in arbitration.

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Transsexuals and the Right Against Sex-Stereotypingn In Smith v. City of East Salem, a transsexual

firefighter claimed he had suffered employment discrimination because of his gender identity disorder

n The court relied on Price Waterhouse to hold that discrimination against a male who assumes a female identity is a form of unlawful gender policing

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Another unique example

n In Schroer v. Billings, the employer withdrew an offer of employment to Diane Schroer, once it learned that she was in the process of transitioning from male to female status

n When Schroer sued, the court ruled that Schroer was a victim of illegal sex-stereotyping, though not in the usual way transsexuals might experience

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Not Feminine Enough . . . Again

n The supervisor was not concerned that a man was taking on the appearance of a woman–but rather, the supervisor admitted that her concern was that Schroer would not be an attractive enough woman.n In other words, that she would not look

feminine enough; she would look like a man dressed as a woman.

n The Court held that it was Schroer's failure, as a woman, to live up to the female expectations, that resulted in discrimination.

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And Then Came Creed . . .

n Amber Creed was born a male, but suffers from gender identity disorder – a condition in which her gender identity does not correspond to her birth sex.

n She was hired by Family Express to work as a sales associate. When she interviewed, she had a masculine demeanor and appearance, but after beginning work, she began to assume a more feminine look.

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Creed (cont.)

n Over time, she began to wear her hair longer and to wear nail polish and facial makeup.

n Like other employees, she wore the required unisex uniform – a polo shirt and slacks.

n Creed received positive performance evaluations and had been selected as "Greeter of the Month" on several occasions.

n Ultimately, however, Creed's employment was terminated.

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Creed Court Throws Us for a Loop

n She was told that all employees were required to follow the company's dress and grooming code, and men were forbidden from wearing makeup or jewelry.

n The Creed court ultimately rejected the claim and held that penalizing Creed for failing "to embody sexual stereotypes" is prohibited, but penalizing her for "breach of the grooming policy" is a legitimate reason. The Court held that no reasonable jury could find that she was the victim of illegal stereotyping, since, apart from her noncompliance with the grooming policy, there was no proof that the employer acted "because of sex."

2009, Northern District of Indiana23

Tattoos

Employee Not Required to Cover TattooIn Washington state, an employee refused tocomply with a “No Visible Tattoo” policy and said hehad a right to work with his wrist tattoo uncoveredbased on his religion of Kemetecism. The EEOCbrought a lawsuit against Red Robin on behalf ofthe Employee. In denying summary judgment, thecourt held that an employee had a right to presenthis case to a jury.

Case ended up settling for $150,000.

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A Sample Policy on Tattoos:

At ABC Company, although we don’t disallow tattooswe have determined and do enforce that tattoos of anynature must be covered up by clothing or tattoo cover-up makeup. This policy is for all employees andviolations will result in a written warning. Upon threewritten warnings, the employee may face termination orchange in position as a result of continual violation ofthe tattoo policy. If you have any questions regardingthis policy, please ask your supervisor or the HRDepartment.

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Piercings – Employer May Prohibit

Employer May Prohibit Facial Piercingsn In 2004, an employee claimed her eyebrow piercing

was part of her religion – the Church of Body Modification.

n She was fired for refusing to remove her eyebrow piercing.

n The court ruled that the accommodation requested by the employee - to be exempt from the policy - would be an undue hardship on Costco, as it would adversely affect the company's public image and would detract from the neat, clean and professional image it wishes its employees to portray.

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Piercings – Employer May NOT Prohibit

The EEOC went after a Subway store because it refused to allow anemployee to wear a nose ring while at work.

Background: During a monthly site visit, a field consultant for Subwayfound a franchisee out of compliance because an employee was wearing anose ring. The franchisee told the employee to remove her nose ringbecause it was contrary to the no-facial-jewelry policy set forth in theSubway® Employee Handbook, but she refused, explaining that herwearing of the nose ring was religious in nature.

The employee requested a waiver of the no-facial-jewelry policy fromthe franchisor. The franchisor requested documentation supporting thereligious nature of the nose ring, but she could not do so.

Subway denied a waiver because it was unaware of any religionrequiring a nose ring. The employee refused to remove the nose ringwhile working, so she was terminated.

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Piercings (cont.)

The employer offered the employee two reasonableaccommodations, both of which she refused. First, theyoffered to allow her to cover the nose ring with aflesh-colored Band-Aid. Second, they offered to allowher to leave the store when the inspector fromSubway Development came by each month so thatthe store would not be written up as “out of compliance”based on her wearing of the nose ring.

The district court found that neither offer was areasonable accommodation and that no unduehardship existed.

- EEOC v. Papin, April 2009, Orlando, Florida28

Facial Hair (Beards)

A no-beard policy may be actionable under Title VII as racial or religious discrimination. 25% of African American men suffer from a condition that makes shaving their face more difficult.

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Hair – Past Standards Different from Recent TrendsEmployers Allowed to Impose Hair Restrictions§ A police department was allowed to bar long hair, moustaches, and sideburns. Kelley v. Johnson (1976) 425 US 238

§ Rule against Corn Row hairstyle was found not discriminatory. Rogers v. American Airlines (SD NY 1981) 527 F.Supp. 229

§ Company allowed to require men to have short hair. Tavora v. New York Mercantile (2nd Cir 1996) 101 F.3d 907.

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BUT, not recently

Employee allowed to keep his dreadlocksEmployee had claim of religious discrimination when employer denied employee the security guard position because employee refused to cut his dreadlocks. Xodus v. Wackenhut (N.D.Ill. 2009) 626 F. Supp. 2d 861Employee allowed to style hair same as othersAfrican American female had a race discrimination claim where employer allegedly required her to have dark “natural” color hair, precluding her from having blonde highlights, while allowing Caucasian employees to have blonde or dark hair colors. Burchette v. Abercrombie & Fitch (SD NY 2009) 2009 Lexis 26462

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Height and Weight Restrictions

No statute expressly prohibits discriminationbased on height or weight (except in SanFrancisco), but height and weight restrictionsCAN have disparate impact on women.

Also, if weight is result of psychological orsystemic disorder (depression), may constitutedisability discrimination.

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Love Contracts

n A love contract policy establishes workplace guidelines for dating or romantically involved coworkers and avoids sexual harassment claims. The contract should:n Limit the liability of the organization in the event the

romantic relationship endsn Contain guidelines on behavior appropriate at work for

the dating couplen Make arbitration or mediation the only grievance

process available to the participants in the office romance.

n Prohibit the parties from being in a reporting relationship to one another

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Uniforms make Dress Codes Easy . . . Or Do They??n Are your employees required to wear

uniforms? If so, employer must pay for the uniform and cost of maintenance.

n The definition of "uniform“ encompasses apparel or accessories that are distinctive in design or color and that are not "generally usable" in an occupation.

n For example: nurse's white uniform NOT uniform because nurses could wear the same item of clothing wherever they worked.

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Target’s Red & Khaki versusIslands’ Hawaiian Tropicsn Employer can insist that basic wardrobe items

be worn at work, such as black pants, black shoes, and a white shirt, without being forced to pay for them (Target).

n But if you require a shirt with a specific design, such as a floral tropical shirt (Islands), employers have to pay.

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Questions & Answers

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