SPANDEX IS A PRIVILEGE, NOT A RIGHT Casual Days, Dress Codes and Work Appearance

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SPANDEX IS A PRIVILEGE, NOT A RIGHT!(Casual
Days, Dress Codes and Work Appearance)

• Bob Gregg
• Boardman Law Firm
• Madison, Wisconsin

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WE USED TO BE SO FORMAL
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BUT THINGS ARE CHANGING
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DONT BE UPTIGHT, LOOSEN UP
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AGENDA

• I INTRODUCTION
• When Casual Day has Gone Too Far
• Spandex is a privilege, but what if someone
  claims a right to look different?
• II. WHAT ARE THE EMPLOYERS RIGHTS TO REGULATE
  APPEARANCE?
• A. The Employers Legal Foundation
• B. Dress Codes Health Safety
  Appropriateness
• III THE EMPLOYEES LEGAL RIGHTS
• A. Constitution
• B. Discrimination (Sex, Disability, Race
  and National Origin)
• C. Religious Adornment and Clothing
  Requirements
• D. Privacy Rights
• E. Labor Law and Union Contracts
• IV. How To Properly Address Issues like Body
  Odor, Clothing, Hairstyle, Piercings

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LAWS

• US Constitution
• OSHA
• Discrimination
• Age Race National Origin
• Disability Religion Sex/Gender
• National Labor Relation Act
• Privacy
• State and Local Laws

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Discussion Example 1

• A number of employees have complained to the
  supervisor about the body odor of a fellow worker.

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Discussion Example 2

• Paul is the repair specialist who goes to your
  customers businesses. His uniform is always
  clean and neat, but today he came to work with
  three rings through his right nostril and an
  earring dangling from his left ear, and he said
  that his eyebrow piercing is set for next week.
  The Service Manager doesnt want to send him out
  looking like that! Paul says that the women in
  the company wear earrings and no one hassles them.

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Discussion Example 3

• The Clerical Manager has informed you that the
  person who seems to be the most qualified
  candidate for the receptionist position is Moslem
  and has stated that she must wear her head
  covering at all times. The manager says it looks
  sort of weird.

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Discussion Example 4

• Janice showed up at work wearing a beaded and
  braided hairstyle. When the manager told her it
  was not a professional appearance, Janice stated,
  This is an ethnic style and part of my African
  American identity. You cant impose your
  ethnocentric White values on me!

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Discussion Example 5

• The election is coming up. Sandra wore a
  campaign button for a State Senate candidate.
  The next day, Frank wore a button for the rival
  candidate. Then Sandra put a campaign sign on
  her desk. Today, Frank is wearing a shirt
  promoting his candidate. When asked to tone it
  down, both insist that the law prevents employers
  from interfering with their rights as voters.

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Discussion Example 6

• The school issued a policy banning confederate
  flag clothing or patches. Three students wore
  confederate flag t-shirts in protest and have
  been suspended. They have filed an appeal, among
  other things, claiming that the school did not
  discipline a group who wore black armbands in
  protest of the disenfranchisement of African
  American voters in the last election.

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U.S. Constitution

• Covers Public Sector and
• some Government Contractors

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• The Constitutional Standard for
• Restrictions on Appearance is
• COMPELLING INTEREST

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Compelling Interest

• Identify the Issue
• Strong evidence that there is a need to restrict
• Is not overly restrictive

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Non-Governmental Employees

• Reasonable Rules
• Rational Basis
• Does not violate laws

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Example 1

• A number of employees have complained to the
  supervisor about the body odor of a fellow worker

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From the Knoxville (Tenn.) News-SentinelBEST
SMELLING TOWN

• City officials in Murfreesboro, Tennessee
  about 30 miles south of Nashville say one
  smelly employee is responsible for a new policy
  that requires all city employees to smell nice at
  work.
• No employee shall have an odor generally
  offensive to others when reporting to work. An
  offensive body odor may result from a lack of
  good hygiene, from an excessive application of a
  fragrant aftershave or cologne or from other
  cause.
• The definition of body odor was left
  intentionally vague.
• Well know it when we smell it, said
  City Councilman Toby Gilley.
• Great towns have the scents to sniff out problems
  before they get out of hand.

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The Employers duty to address appearance or
odors

• Safety/Health
• Complaints of Offensiveness

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Problem of not addressingthe issue

• OSHA violations
• Harassment violations
• By those offended
• By the person at issue
• Disability suits

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How Do You Approach the Issue?
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SCRIPT

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Script 1

• Describe Facts and
• Job Relatedness
• Ask

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Avoid

• Labels
• Naming Names
• Diagnosis
• Lecturing (Ask, Dont Tell)

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An Employer has the general right to set
workplace standards of

• Appearance
• Hygiene
• Scents

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Disability

• Ongoing mental or medical condition, which
  seriously impairs a major life activity and makes
  work achievement unusually difficult or limits
  the capacity for work.

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Disability Process

• Step 1. Awareness of disability
• Step 2. Interactive process -- Document
• Step 3. Reasonable accommodation

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Example 2

• Paul is the repair specialist who goes to your
  customers businesses. His uniform is always
  clean and neat, but today he came to work with
  three rings through his right nostril and an
  earring dangling from his left ear, and he said
  that his eyebrow piercing is set for next week.
  The Service Manager doesnt want to send him out
  looking like that! Paul says that the women in
  the company wear earrings and no one hassles
  them.

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Safety Issue?
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Sex/Gender Discrimination
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Sexual Harassment

• Revealing Garb
• Offensive Comments on Appearance

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Gender Standards

• Equal Impact
• - But -
• Can Consider Customary Styles of Clothing

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Gender Changes

• Not Federally Covered
• State Laws Vary

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Tattoos Piercings

• Gender-neutral (except for earrings)
• Can require coverage
• Check state/local law

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Hair

• Gender Neutral
• State Warning Laws

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Example 3

• The clerical manager has informed you that the
  person who seems to be the most qualified
  candidate for the receptionist position is Moslem
  and has stated that she must wear her head
  covering at all times. The manager says it looks
  sort of weird.

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Religion

• May not discriminate
• Must reasonably accommodate

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Example 4

• Janice showed up at work wearing a beaded and
  braided hairstyle. When the manager told her it
  was not a professional appearance, Janice stated,
  This is an ethnic style and part of my African
  American identity. You cant impose your
  ethnocentric values on me!

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• Race
• National Origin
• Ethnic Identity

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Race

• Physical Characteristics
• Hair
• Beards Medical Conditions

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Ethnicity

• Group Identity
• Hair
• Scarification
• Clothing
• Widely Adopted
• Hip Hop Cases

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Example 5

• The election is coming up. Sandra wore a
  campaign button for a State Senate candidate.
  The next day, Frank wore a button for the rival
  candidate. Then Sandra put a campaign sign on
  her desk. Today Frank is wearing a shirt
  promoting his candidate. When asked to tone it
  down, both insist that the law prevents employers
  from interfering with their rights as voters.

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Political/Social Expression in the
Non-Governmental Workplace

• Reasonable Rules
• Rational Basis
• Offensive expression
• What is political/social?
• What is offensive?
• Employers right to determine

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Other Symbolic Appearance

• Advertising
• Patriotic
• Labor Relations

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Advertising

• No Employee rights
• Employer can require

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Off-Duty Wearing of Company Insignia

• Employer can control
• The wearer is a walking advertisement

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Patriotic Symbols

• Cannot require or coerce
• Private employer has absolute right to restrict
• Consider publicity issues of restrictions

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Labor Relations

• National Labor Relations Act
• Right to express concerted concerns
• Right to refuse to wear insignia
• Duty to bargain dress codes

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Establishing Policy

• No requirement to have a policy
• (Call it as you see it reasonably
• and within the law)

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Considerations for Appearance Policies
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Legal

• Public organizations compelling interest
• Private employers reasonable rule or rational
  basis
• Discriminating effect
• National Labor Relations Act Union Contracts
• Other federal, state local aaws

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Business/Job Related Basis

• Health
• Safety
• Work Conditions
• Functionality
• Geography (hot, cold, rural, urban, community
  standards)

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Reasonableness
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Company Image

• Healthy
• Sanitary
• Professional
• Casual
• The Harley Image
• Uniform
• Non-offensive to diverse clientele
• Etc.

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Feasible

• Ease of acceptance versus a fight.
• Enforceability
• Expense to employee or organization

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• A0467294.ppt
• Wisconsin SHRM 2006 Conference