In previous articles, I’ve written about employment discrimination and civil rights protections in employment. I’ve also discussed how U.S. laws have evolved to protect workers from discrimination based upon a number of different classes, such as:
- Skin color
- National origin
- Sexual orientation
- Gender identity
Title VII of the 1964 Civil Rights Act was enacted to implement discrimination protections in employment. Under this law, it is illegal for an employer to discriminate against prospective or existing employees in any of the protected classes I’ve listed (note: some were added by subsequent amendments and others by court decisions).
And the employer’s intent to discriminate – or lack thereof – does not matter. If an employer intends to discriminate, this is called disparate treatment discrimination and this form of employment discrimination is illegal. But even in situations where an employer does not intend to discriminate, if their policies and practices have the effect of employment discrimination based upon a protected class, this is referred to as disparate impact and it is just as illegal as intentional discrimination.
To use an example, with respect to positions where the need for gender specificity cannot be legally substantiated (i.e., where no bona fide occupational qualification exists), it is not permitted for an employer to hire only men and to refuse to hire women due to misogyny or sexism. But it is also illegal for an employer to create facially neutral hiring criteria that have the effect of excluding or putting women at a disadvantage in the hiring process – even if the employer does not intend for this outcome.
Viscecchia’s Lawsuit Regarding Employment Discrimination
But here’s a question: Can employers still mandate different dress or grooming codes for men and women? Enter the case of Viscecchia v. Alrose Allegria LLC.
In 2009, Richard Viscecchia began working as a chef for the Allegria Hotel in Long Beach, New York. The Allegria Hotel maintained a policy that stated that their employees should maintain a neat and tidy appearance at all times.
In regard to employee hairstyles, the policy said that: “Hair must be clean, trimmed, well brushed and neat at all times, Extreme styles flowers [sic], colored ribbon’s [sic], beaded, braided or streaked hair is not permitted. Color should be maintained at neutral tones.
Men’s hair must be above the shirt collar. Sideburns should not exceed one inch in length and should be neatly trimmed. No other type of hair covering should be worn unless considered part of the uniform.”
Viscecchia had long hair that extended past his shoulders, and hotel managers directed him to cut it to comply with the company’s dress and grooming code. Viscecchia refused, and eventually the hotel fired him. Following his termination, Viscecchia brought suit in federal court against the hotel, alleging gender discrimination.
Viscecchia’s argument was that it was unlawful for the hotel to maintain different dress and grooming rules for men and women, pursuant to Title VII. Logically speaking, Viscecchia’s argument makes sense.
After all, there were women who worked alongside him in the kitchen at the Allegria Hotel. They had long hair, and their hair was totally fine in the eyes of their employer. But his hair was somehow untenable? Why?
The answer, as the court explained in their dismissal of Viscecchia’s claim for gender discrimination, has to do with the intent of the Civil Rights Act and the mutability of characteristics.
The judge explained in the decision to grant the hotel’s motion to dismiss that the Civil Rights Act and its subsequent amendments were aimed at preventing people from unfair discrimination against others based upon qualities over which they have no control. In the legal field, we call these characteristics “immutable” traits – that is to say, traits that cannot be readily changed at will. And these traits include most of the protected classes, such as gender, race, national origin, age and so on (although religion is not immutable).
But dress and grooming decisions are decidedly mutable. Hair length, hair color, attire and jewelry can be freely changed by an individual at will. And so, consequently, employers are generally free to mandate certain rules for employees’ dress and grooming standards based on their organizational preferences.
One might be tempted to argue that a grooming policy that allows long hair for women but forbids it for men reflects antiquated gender stereotyping and a perpetuation of superficial values from generations that have long since faded from the consensus of modern public opinion. And this may all be true. But it’s ultimately a cultural and philosophical argument, not a legal one.
Right, wrong, or indifferent, the Civil Rights Act was never intended to upend the traditions and societal norms of American culture. It was simply aimed at preventing employment discrimination based upon characteristics that cannot be changed and that are not relevant to the context of a situation.
The relevance of hair length and other dress and grooming guidelines to different employment scenarios is debatable and ultimately depends on the situation (for instance, long hair may present a health or safety risk in some cases, while in others it is purely aesthetic). But these variables are certainly not immutable – and as such, the Civil Rights Act has nothing to say about them.
It’s worth noting that the “traditional” leaning of the Allegria Hotel’s hair and grooming style has no bearing on its legality, theoretically. In other words, the fact that conservative American views commonly hold that women should customarily have longer hair and men should customarily have shorter hair is not in any way relevant to the legality of the employer’s grooming stipulations. In fact, if the policy had been the exact reverse – requiring men to have long hair and women to have short hair – it should be just as legally defensible, in theory.
Title VII Does Not Strip Employers of Their Right to Mandate Employee Appearance
Title VII and its subsequent amendments did a lot to advance employment discrimination protections for the immutable characteristics of workers. However, one thing it did not do is strip employers of the right to mandate certain appearance-based standards around mutable variables that workers can presumably alter at will. Employers and employees can both benefit from understanding the limits of federal discrimination protections – so as to cooperate and collaborate more constructively and civilly moving forward.