CM-619 Grooming Standards

CONTENTS                                  

619.1   Introduction

619.2   Grooming Standards Which Prohibit the Wearing of Long Hair 

(a)        Long Hair - Sex Basis

(1)        Processing Male Hair Length Charges

(2)        Closing Charges When There Is No Disparate Treatment In Enforcement of Policy

(3)        EEOC Decisions

(4)        Federal Court Cases

(b)        Long Hair - Males - National Origin, Race, and Religion Bases

619.3   Male Facial Hair

(a)        Facial Hair - Sex Basis

(b)        Facial Hair - Race and National Origin

(1)        EEOC Decisions

(2)        Federal Court Cases

(c)        Facial Hair - Religion Basis

619.4   Uniforms and Other Dress Codes in Charges Based on Sex

(a)        Uniforms

(b)        EEOC Decisions

(c)        Federal Court Cases

(d)        Dress Codes Which Do Not Require Uniforms

(e)        Federal Court Cases

619.5   Race or National Origin Related Appearance

(a)        Introduction

(b)        Investigating and Resolving the Charge

(c)        EEOC Decisions

(d)        Federal Court Cases

(e)        Race Related Medical Conditions and Physical Characteristics

619.6   Religion-Related Appearance

(a)        Introduction

(b)        Investigating Religion-Related Appearance

(c)        Religious Accommodation 

(d)        EEOC Decisions

619.7   Other Appearance-Related Issues

619.8   Cross References

(a)        Theories of Discrimination: § 604

(b)        Sexual Harassment: § 615

(c)        Race Related Medical Conditions and Physical Characteristics: § 620

(d)        Religious Accommodation: § 628

Appendices

Policy document               Relates to  

Goldman v. Weinberger         § 619.7 

 

SECTION 619
GROOMING STANDARDS

619.1   Introduction -

The vast majority of cases treating employer grooming codes as an issue have involved appearance requirements for men.  Initially, the federal district courts were split on the issue; however, the circuit courts of appeals have unanimously concluded that different appearance standards for male and female employees, particularly those involving hair length where women are allowed to wear long hair but men are not, do not constitute sex discrimination under Title VII.  In contrast to the circuit court cases, decisions rendered by EEOC have consistently concluded that, absent a showing of a business necessity, different grooming standards for men and women constitute sex discrimination under Title VII.

The weight of existing judicial authority and the Commission's contrary interpretation of the statute could not be reconciled.  Thus, the Commission, while maintaining its position with respect to the issue, concluded that successful conciliation and successful litigation of male hair length cases would be virtually impossible.  Accordingly, field offices were advised to administratively close all sex discrimination charges which dealt with male hair length and to issue right to sue notices in each of those cases.  This Commission policy applied only to male hair length cases and was not intended to apply to other dress or appearance related cases.  This chapter of the Interpretative Manual is intended to clarify the Commission's policy and position on cases which raise a grooming or appearance related issue as a basis for discrimination under Title VII.

619.2   Grooming Standards which Prohibit the Wearing of Long Hair

(a)  Long Hair - Sex Basis -

While the Commission considers it a violation of Title VII for employers to allow females but not males to wear long hair, successful conciliation of these cases will be virtually impossible in view of the conflict between the Commission's and the various courts' interpretations of the statute.  Therefore, the Commission has decided that it will not continue the processing of charges in which males allege that a policy which prohibits men from wearing long hair discriminates against them because of their sex.  (See § 619.2(a)(2) for the procedure for closing these charges.)  However, remember that such charges must be accepted in order to protect the right of the charging party to later bring suit under Title VII.

It is the Commission's position, however, that the disparate treatment theory of discrimination is nevertheless applicable to those situation in which an employer has a dress and grooming code for each sex but enforces the grooming and dress code only against males with long hair.  Thus, if an employer's only grooming or dress code rule is one which prohibits long hair for males, the Commission will close the charge once it has been determined that there is no disparate treatment involved in the application of the rule; however, if an employer has grooming or dress codes applicable to each sex but only enforces the portion which prohibits long hair on men, the disparate treatment theory is applicable.  The following example is illustrative of this point.

Example - R has a written policy regarding dress and grooming codes for both male and female employees.  A provision in the code for women states that women are prohibited from wearing slacks or pantsuit outfits while on their tour of duty.  A provision in the code for males states that males are prohibited from wearing hair longer than one inch over the ears or one inch below the collar of the shirt.  CP, a male, was discharged due to his nonconformity with the male hair length provision. Investigation of the charge reveals that R's enforcement of the female dress code is virtually nonexistent and that the only dress and grooming code provision it enforces is the male hair length provision.

Should the investigation reveal facts similar to the example above, the disparate treatment theory of discrimination would be applicable, and a cause finding would be appropriate.  (For a full discussion of the disparate treatment theory, see § 604, Theories of Discrimination.)

This position of the Commission does not conflict with the three major "haircut" cases.  See Fagan v. National Cash Register Co., 481 F.2d 1115, 1124 n.20 (D.C. Cir. 1973); Willingham v. Macon Telegraph Publishing Co., 507 F.2d 1084, 1092-1093 (5th Cir, 1975); and Dodge v. Giant Food, Inc., 488 F.2d 1333, 1336 (D.C. Cir. 1973).  The opinions in these three cases recognized that there could be an alternative ground for Title VII jurisdiction on a charge of discrimination based on sex when there is disparity in enforcing the grooming/dress code policy.  Several other courts are in agreement with this contention.  It has, however, been specifically rejected in Fountain v. Safeway Stores, Inc., 555 F.2d 753 (9th Cir. 1977).

(1)  Processing Male Hair Length Charges - Since the Commission's position with respect to male hair length cases is that only those which involve disparate treatment with respect to enforcement of respondent's grooming policy will be processed, the EOS investigating the charge should obtain the following information.

(i)  Does respondent have a dress/grooming code for males? If yes, obtain code.

(ii) Does respondent have a dress/grooming code for females? If yes, obtain code.

(iii) When did such codes, if any, go into effect?

(iv) How many females have violated the code?

(v)  How many males have violated the code?

(vi) What disciplinary actions have been taken against females found in violation of the code?

(vii) What disciplinary actions have been taken against males found in violation of the code?

Investigation of the charge should not be limited to the above information.  It should include any evidence deemed relevant to the issue(s) raised.  The information should be solicited from the charging party, the respondent, and other witnesses.

There may be instances in which only males with long hair have had personnel actions taken against them due to enforcement of the employer's dress/grooming code.  The fact that only males with long hair have been disciplined or discharged is not in itself conclusive of disparate treatment because they may have been the only ones who have violated the dress/grooming code.  That is, females also subject to the dress/grooming code may not have violated it.  Thus, the application of the disparate treatment theory should be based on all surrounding circumstances and facts.

(2)  Closing Charges When There Is No Disparate Treatment in Enforcement of Policy - If during the processing of the charge it becomes apparent that there is no disparate treatment in the enforcement of respondent's policy, a right to sue notice is to be issued to the charging party and the case is to be dismissed according to 29 C.F.R. § 1601.25.  In closing these charges, the following language should be used:

Due to federal court decisions in this area which have found that male hair length restrictions do not violate Title VII, the Commission believes that conciliation on this issue will be virtually impossible.  Accordingly, your case has been dismissed and a right to sue notice is issued herewith so that you may pursue the matter in federal court if you so desire.

(3)  EEOC Decisions

The Commission has stated in a number of decisions that an employer has engaged in an unlawful employment practice by maintaining a hair length policy which allows female employees to wear their hair longer than male employees.  The Commission has stated in these decisions that in the absence of a showing of a business necessity, the maintenance of these hair length restrictions discriminates against males as a class because of their sex.  (See EEOC Decision No. 71-2343, CCH EEOC Decisions (1973) ¶ 6256; EEOC Decision No. 72-0979, CCH EEOC Decisions (1973) ¶ 6343; EEOC Decision No. 71-1529, CCH EEOC Decisions (1973) ¶ 6231; and EEOC Decision No. 72-2179, CCH Employment Practices Guide ¶ 6395.)  To establish a business necessity defense, an employer must show that it maintains its hair length restriction for the safe and efficient operation of its business.  (See, for example, EEOC Decision No. 72-0701, CCH EEOC Decisions (1973) ¶ 6318, where the Commission found that charging party (welder), was discharged for failing to wear his hair in such a manner that it would not constitute a safety hazard.)

NOTE: This authority is not to be used in issuing letters of determination.  These Commission decisions are referenced here simply to state the Commission's prior policy on this issue.

(4)  Federal Court Cases

Seven circuit courts of appeals have unanimously concluded that different hair length restrictions for male and female employees do not constitute sex discrimination under Title VII.  The first three opinions rendered by the appellate courts on this issue were Fagan v. National Cash Register Co., 481 F.2d 1115 (D.C. Cir. 1973); Dodge v. Giant Food, Inc., 488 F.2d 1333 (D.C. Cir. 1973); and Willingham v. Macon Telegraph Publishing Co., 507 F.2d 1084 (5th Cir. 1975).  After these appellate court opinions, the opinions of various courts of appeals and district courts consistently stated the principle that discrimination due to an employer's hair length restriction is not sex discrimination within the purview of Title VII.  Additionally, all courts have treated hair length as a "mutable characteristic" which a person can readily change and have held that to maintain different standards for males and females is not within the traditional meaning of sex discrimination under Title VII.  Thus, the unanimous view of the courts has been that an employer need not show a business necessity when such an issue is raised.  Note that this view is entirely inconsistent with the position taken by the Commission. (See, Barker v. Taft Broadcasting Co., 549 F.2d 400 (6th Cir. 1977). See also Baker v. California Land Title Co., 507 F.2d 895 (9th Cir. 1974); Knott v. Missouri Pacific Railroad Co., 527 F.2d 1249 (8th Cir. 1975); Longo v. Carlisle-Decoppet & Co., 537 F.2d 685 (2nd Cir. 1976); and Earwood v. Continental Southeastern Lines, Inc., 539 F.2d 1349 (4th Cir. 1976).)

(b)  Long Hair - Males - National Origin, Race, and Religion Bases -

When grooming standards or policies are applied differently to similarly situated people based on their religion, national origin, or race, the disparate treatment theory of discrimination will apply.  (See § 619.2(a) for instructions in processing these charges.)  If, however, a charge alleges that a grooming standard or policy which prohibits males from wearing long hair has an adverse impact against charging party because of his race, religion, or national origin, the Commission will only find cause if evidence can be obtained to establish the adverse impact.  These adverse impact charges are non-CDP and [1]/ should be contacted for guidance in processing the charge.(See also, § 628 of this manual, Religious Accommodation.)

619.3   Male Facial Hair

(a)  Facial Hair - Sex Basis -

Based on the language used by the courts in the long hair cases, it is likely that the courts will have the same jurisdictional objections to sex-based male facial hair cases under Title VII as they do to male hair length cases.  (See § 619.2 above.)  However, there will be instances in which the charging parties in sex-based male facial hair cases prevail.  These will be cases in which the disparate treatment theory of discrimination is applied.  The following fact pattern illustrates this type of case.

Example - R's dress/grooming policy requires that women's hair be contained in a hairnet and prohibits men from wearing beards, mustaches and long sideburns in its bakery.  CP (male) was suspended for not conforming to that policy.  Investigation reveals that R does not enforce its hairnet requirement for women and that women do in fact work without hairnets.  All the surrounding facts and circumstances reveal that R does not discipline or discharge any females found in violation of the policy and that only males are disciplined or discharged.  These facts prove disparate treatment in the enforcement of the policy.  Therefore, reasonable cause exists to believe that R has discriminated against CP because of his sex.

If during the processing or investigation of a sex-based male facial hair case it becomes apparent that there is no unequal enforcement of the dress/grooming policy so as to warrant a finding of disparate treatment, charging party is to be issued a right to sue notice and the case is to be dismissed according to 29 C.F.R. § 1601.25.  In closing these charges, the following language should be used:

Federal court decisions have held that male hair length restrictions do not violate Title VII.  The Commission believes that the analyses used by these courts in the hair length cases will also be applied to sex-based charges of discrimination involving male facial hair, thus making conciliation on this issue virtually impossible.  Accordingly your case is being dismissed and a right to sue notice is issued herewith so that you may pursue the matter in federal court if you so desire.

Federal Court Cases - A rule against beards discriminated only between clean-shaven and bearded men and was not discrimination between the sexes within the meaning of Title VII.  Rafford v. Randle Eastern Ambulance Service, 348 F. Supp. 316, 5 EPD 8420 (S.D. Fla. 1972).

(b)  Facial Hair - Race and National Origin -

The Commission's position with respect to male facial hair discrimination charges based on race or national origin is that only those which involve disparate treatment in the enforcement of a grooming standard or policy will be processed, once accepted, unless evidence of adverse impact can be obtained.  If there is evidence of adverse impact on the basis of race or national origin the issue is non-CDP and [1]/ should be contacted.  Otherwise, the EOS investigating the charge should obtain the same evidence outlined in § 619.2(a)(1) above, with the basis changed to reflect the charge.  If during the processing of the charge it becomes apparent that there is no disparate treatment in enforcement of the policy or standard and there is no evidence of adverse impact, a no cause LOD should be issued. (See also §§ 619.5, 619.6, and § 620.  Section 620 contains a discussion of Pseudofolliculitis Barbae.)

(1)  EEOC Decisions

In EEOC Decision No. 72-0979, CCH EEOC Decisions (1973) ¶ 6343, the Commission found that there was a reasonable basis for finding that an employer engaged in unlawful employment practices by discriminating against Blacks and Hispanics as a class with respect to grooming standards because of their race and national origin.  The employer's grooming standards prohibited "bush" hair styles and "handlebar" or "Fu Manchu" mustaches.  (See also EEOC Decision No. 71-2444, CCH EEOC Decisions (1973) ¶ 6240, discussed in § 619.5(c), below.)

(2)  Federal Court Cases

In Brown v. D.C. Transit System, Inc., 523 F.2d 725 (D.C. Cir. 1975), an action was brought by several Black bus drivers who were discharged for noncompliance with a metropolitan bus company's facial hair regulations.  Plaintiffs sought relief under the Due Process Clause of the Fifth Amendment and the Civil Rights Acts of 1866, 1871, and 1964, as amended.

The District of Columbia Circuit Court of Appeals rejected all claims, and citing Willingham, Fagan, and Dodge, supra, held that in an employment situation where an employer has prescribed regulations governing the grooming of its employees, the individuals' rights to wear beards, sideburns and mustaches are not protected by the Federal Government, by statute or otherwise.  The same general result was reached by the Federal District Court for the Southern District of Florida in Rafford v, Randle Eastern Ambulance Service, 348 F. Supp. 316, 5 EPD ¶ 8420 (S.D. Fla. 1972).

(c)  Facial Hair - Religion Basis - For a discussion of this issue see § 628 of this manual on religious accommodation.

619.4   Uniforms and Other Dress Codes in Charges Based on Sex

(a)  Uniforms -

The use of dress and grooming codes which are suitable and applied equally is not unlawful under Title VII, but where respondent maintains a dress policy which is not applied evenly to both sexes, that policy is in violation of Title VII.

Example - R has a dress policy which requires its female employees to wear uniforms.  Men are only required to wear appropriate business attire.  Upon investigation it is revealed that R requires uniforms for its female employees because it feels that women are less capable than men in dressing in appropriate business attire.  R states that if it did not require its female employees to dress in uniforms, the female employees would come to work in styles which were in vogue; e.g., slit skirts and dresses, low cut blouses, etc.  Based on either the additional cost to the employees that the purchase of uniforms imposes or the stereotypical attitude that it shows, the policy is in violation of Title VII.  (See Carroll v. Talman Federal Savings and Loan Association, below.)

There may be instances in which the employer requires both its male and female employees to wear uniforms, and this would not necessarily be in violation of Title VII.  But keep in mind that if this requirement is enforced against members of only one sex, race, national origin, or religion, the disparate treatment theory would apply and a violation may result.

The requirement of a uniform, especially one that is not similar to conventional clothes (e.g., short skirts for women or an outfit which may be considered provocative), may subject the employee to derogatory and sexual comments or other circumstances which create an intimidating, hostile, or offensive working environment based on sex.  In some cases the mere requirement that females wear sexually provocative uniforms may by itself be evidence of sexual harassment.  Since the employer is required to maintain an atmosphere which is free of sexual harassment, this may also constitute a violation of Title VII.  (See Hasselman v. Sage Realty Corp., below.  For processing a sexual harassment case see § 615 of this manual.)

There may be situations in which members of only one sex are regularly allowed to deviate from the required uniform and no violation will result.

Example - R requires all its employees to wear uniforms. R, however, allows female employees to wear regular maternity clothes when they are pregnant.  CP (male) alleges sex discrimination because he was not allowed to deviate from the required uniform.  CP alleged that the uniform made him uncomfortable.  In view of the fact that pregnant women cannot wear conventional clothes when they are pregnant, R's policy cannot be said to result in disparate treatment or have an adverse impact on similarly situated males, so long as males are allowed to deviate from the uniform requirement when medical conditions necessitate a deviation.

(b)  EEOC Decisions

In EEOC Decision No. 77-36, 2 CCH Employment Practices Guide ¶ 6588, charging party was required to wear provocative outfits as a term and condition of her employment.  Charging party wore such outfits but refused to wear one "Bicentennial outfit" because when she wore that outfit, she was the target of sexually derogatory comments.  Charging party was terminated for her refusal to wear this outfit.  The Commission found sex discrimination because requiring charging party to wear such outfits as a condition of her employment made her the target of derogatory comments and inhibited rather than facilitated the performance of her job duties.  Moreover, the Commission found that male workers performed similar job functions without having to wear sexually revealing uniforms.  In analyzing the issue, the Commission stated that it had not held unlawful the use of dress and grooming codes which are suitable and applied equally, but where a dress policy reflects a stereotypical attitude toward one of the sexes, that policy will be found in violation of Title VII.

(c)  Federal Court Cases

In Carroll v. Talman Federal Savings and Loan Association, 604 F.2d 1028, 20 EPD ¶ 30,218 (7th Cir. 1979), female bank employees were subjected to illegal sex discrimination when they were required to wear uniforms while male employees only had to wear suitable business attire.  No evidence was presented that female workers had ever worn improper business attire on those days when they were permitted to wear "street clothes" so that the uniform could be cleaned.  The court concluded that the justification given, i.e., that women were less capable than men in choosing appropriate business attire, was based on offensive stereotypes prohibited by Title VII.

Requiring female employees to wear sexually revealing uniforms which will subject them to lewd and derogatory comments also constitutes sex discrimination under Title VII.  Hasselman v. Sage Realty Corp, 507 F. Supp. 599, 26 EPD ¶ 32,072 (S.D.N.Y. 1981).

(d)  Dress Codes Which Do Not Require Uniforms -

There may also be instances in which an employer's dress code requires certain modes of dress and appearance but does not require uniforms.  For example, the dress code may require male employees to wear neckties at all times and female employees to wear skirts or dresses at all times.  So long as these requirements are suitable and are equally enforced and so long as the requirements are equivalent for men and women with respect to the standard or burden that they impose, there is no violation of Title VII.

Example - R requires its male employees to wear neckties at all times.  It also requires its female employees to wear dresses or skirts at all times.  CP (female) was temporarily suspended when she wore pants to work.  She files a charge alleging that the dress code requirement and its enforcement discriminate against her due to her sex.  The investigation reveals that one male who had worn a leisure suit with an open collar shirt had also been suspended.  There is no evidence of other employees violating the dress code.  R also states that it requires this mode of dress for each sex because it wants to promote its image.  The investigation has revealed that the dress code is enforced equally against both sexes and that it does not impose a greater burden or different standard on the employees on the basis of sex.  Therefore, there is not reasonable cause to believe that either R's dress code or its enforcement discriminates against CP because of her sex.

Example - R prohibits the wearing of shorts by women who work on the production line and prohibits the wearing of tank tops by men who work on the production line.  This is an equivalent standard.

(e)  Federal Court Cases

No discrimination under Title VII was found in an employer dress code policy which required male employees to wear ties.  There was a comparable standard for women.  Fountain v. Safeway Stores Inc., 555 F.2d 753 (9th Cir. 1977).  Also, there was no discrimination in a policy which prohibited women from wearing slacks in the executive portion of defendant's offices.   Lanigan v. Bartlett and Company Grain, 466 F. Supp. 1388 (W.D. Mo. 1979).

619.5   Race or National Origin Related Appearance

(a)  Introduction -

The situations which fall within this section involve a dress/grooming policy which adversely affects charging party because charging party has adopted a manner of dress or grooming which is an expression of, or is otherwise related to, charging party's race or national origin.  Such a situation might involve, for instance, the Afro-American hair style.  It became the badge of Black pride and unity, and Blacks who did not wear it were chided for being "uncle toms" and out of step with time.  However, some employers did not allow it to be worn at their establishments, thereby placing Black employees or applicants at a disadvantage.

Example - CP, a Black male, was employed by R as a bank teller.  When CP began working for R he was clean shaven and wore his hair cut close to his head.  Three months after CP began working for R, he began to wear his hair longer and had it styled in an Afro-American hair style. R asked CP to cut his hair because R believed that its customers would view his hair style as a symbol of militancy.  CP refused to cut his hair and R reassigned him to a position which did not involve contact with the public.

(b)  Investigating and Resolving the Charge -

For each case in which the issue of race or national origin related appearance is raised, the EOS should bear in mind that either the adverse impact or disparate treatment theory of discrimination may be applicable and should therefore obtain the following information:

(1)  Evidence that the person setting and/or applying the appearance standards is influenced by national origin or by racial considerations, e.g., respondent views charging party's Afro as a symbol of Black militancy;

(2)  Evidence that respondent, although arguing that it has neutral appearance standards, in fact permits one national origin or racial group to deviate from the dress code policy but does not permit the other group to do so;

(3)  Evidence that respondent enforces its dress/grooming policy more rigidly against one national origin or racial group than another;

and

(4)  Evidence which may establish that the dress/grooming policy has an adverse impact on charging party's class.

The investigator should also obtain any additional evidence which may be indicative of disparate treatment or which may demonstrate an adverse impact upon members of a racial or national origin group.

When grooming or dress standards or policies are applied differently to similarly situated people based on their national origin or race, the disparate treatment theory of discrimination will apply, and this issue is CDP.  (See § 619.2(a) for discussion.)  If, however, a charge alleges that a grooming standard or policy has an adverse impact against charging party because of his/her race or national origin, the Commission will only find cause if evidence can be obtained to establish adverse impact.  These adverse impact charges are non-CDP and [1]/ should be contacted for guidance in processing the charge.

(c)  EEOC Decisions

In EEOC Decision No. 71-2444, CCH EEOC Decisions (1973) ¶ 6240, charging party alleged that respondent discharged him because his Afro-American hair style did not conform to the company's standards of uniform appearance.  The Commission found that the application of respondent's "line of sight" hair grooming policy to all employees, without regard to their racially different physiological and cultural characteristics, tended to adversely affect Blacks because they have a texture of hair different from Whites.  The Commission cited Ramsey v. Hopkins, 320 F. Supp. 477 (N.D. Ala. 1970), and noted that the wearing of an Afro-American hair style by a Black person has been so appropriated as a cultural symbol by Black people as to make its suppression either an automatic badge of racial prejudice or a necessary abridgement of First Amendment rights.  It should be noted that in this case, respondent did not apply its grooming policies in a uniform manner as some White males were noted to be wearing long sideburns and facial hair, also in violation of respondent's grooming policy.  This unequal enforcement of the grooming policy is disparate treatment and a violation of Title VII.

(d)  Federal Court Cases

No race discrimination was found where a Black female employee was discharged for refusing to remove the beads from the ends of the braids on her "cornrow" hairstyle.  The hairstyle is not an immutable characteristic, and it was her refusal to remove the noisy, clicking beads that led to her discharge.  Carswell v. Peachford Hospital, 27 Fair Emp. Prac. Cas. (BNA)698, 26 EPD ¶ 32,012 (N.D. Ga. 1981).

(e)  Race Related Medical Conditions and Physical Characteristics -

For a full discussion of discrimination due to race related medical conditions and physical characteristics, see § 620 of this manual [§ 620 has been rescinded.  More recent guidance on this issue is available in Section 15 of the New Compliance Manual - Race and Color Discrimination].

619.6   Religion-Related Appearance

(a)  Introduction -

An employee's religion may require him/her to wear certain identifiable religious garments.  The wearing of these garments may be contrary to the employer's dress/grooming policy.  If the employee desires to wear such religious garments in the work place, the employer must make reasonable efforts to accommodate the employee's request.  A cause finding should be issued when the employer refuses to allow the employee to wear garments required by their religion without showing that such refusal is necessary for the safe and efficient performance of the employer's business, i.e., without proving a business necessity defense.

Example - R requires its employees to wear a uniform which consists of pants and a tunic top.  CP (female) applied for a job with R and R offered her employment. CP's religion is Seventh Day Adventist, which requires its female followers to wear longer than usual skirts.  CP reported to work wearing the skirt and refused to wear R's uniform.  This led to revocation of her offer of employment.  CP files a charge and during the investigation it is revealed that there were no attempts to accommodate CP; that CP could have worn the tunic with a skirt; and that there would have been no interference with the safe and efficient operation of R's business if CP had been allowed to wear the skirt.  Therefore, reasonable cause exists to believe that R discriminated against CP due to her religion.

(b)  Investigating Religion - Related Appearance Cases -

The EOS should obtain the following information:

(1)  A statement of all attempts to accommodate the charging party, if any attempts were made by the respondent after notification by the charging party of his/her need for religious accommodation.  This should include a list of alternatives considered by the respondent for accommodating the charging party's religious practices.

(2)  If no attempts were made by the respondent to accommodate the charging party's religious practices, the reasons for the lack of attempts should be documented.

(i)  If the respondent claims that (s)he is unable to reasonably accommodate the charging party's religious practices without undue hardship on the conduct of his/her business, a statement of the nature of the undue hardship should be obtained.

(ii) When the nature of the undue hardship involves any cost, a statement from the respondent documenting the type of cost involved and the actual amount should be obtained.

(3)  A detailed description of the respondent's business operations and those aspects of the business which render accommodation difficult.

(4)  Evidence to indicate whether charging party cooperated with the respondent in reaching an accommodation of charging party's religious practices.

The above list is merely a guide.  It is not intended to be exhaustive.  The EOS should also obtain any evidence which may be indicative of adverse impact or disparate treatment.

(c)  Religious Accommodation -

For a full discussion of other issues regarding religious accommodation, and for the definition of religious practices, see § 628.

(d)  EEOC Decisions -

In EEOC Decision No. 71-779, CCH EEOC Decisions (1973) ¶ 6180, the Commission found that, in the absence of any showing that a hospital's rule requiring nurses to wear the nurse's cap as a traditional symbol of nursing was based on reasonable business needs, conditioning employment on the wearing of such caps amounted to religious discrimination against any nurse required by her religious beliefs to wear a head covering.  The Commission also found in EEOC Decision No. 71-2620, CCH EEOC Decisions (1973) ¶ 6283, that the constructive discharge of a female adherent to the Black Muslim faith, because she failed to conform to the employer's dress regulations and wore an ankle-length dress required by her religious beliefs, amounted to unlawful discrimination on account of her religion.

619.7   Other Appearance-Related Issues

There are instances in which the charging party will allege discrimination due to other appearance-related issues, such as a male alleging that he was discharged or suspended because he wore colored fingernail polish, or because he wore earrings, etc.  The Commission believes that this type of case will be analyzed and treated by the courts in the same manner as the male hair-length cases.  That is, the courts will say that the wearing of fingernail polish or earrings is a "mutable" characteristic that the affected male can readily change and therefore there can be no discrimination on the basis of sex under Title VII.  The Commission further believes that conciliation of this type of case will be virtually impossible in view of the male hair-length cases.  (See Fagan, Dodge, and Willingham, supra, § 619.2(d).)  Therefore, when this type of case is received and the charge has been accepted to preserve the charging party's appeal rights, the charging party is to be given a right to sue notice and his/her case dismissed.  In disposing of this type of case, the following language should be used:

Federal court decisions have found that male hair length restrictions do not violate Title VII.  These courts have also stated that denying an individual's preference for a certain mode of dress, grooming, or appearance is not sex discrimination within Title VII of the Civil Rights Act of 1964, as amended.  The Commission believes that the analyses used by those courts in the hair length cases will also be applied to the issue raised in your charge of discrimination, thus making conciliation on this issue virtually impossible.  Accordingly, your case is being dismissed and a right to sue notice is issued herewith so that you may pursue the matter in federal court, if you so desire.

619.8   Cross References

(a)  Theories of Discrimination: § 604.

(b)  Sexual Harassment; § 615.

(c)  Race Related Medical Conditions and Physical Characteristics: §  620.

(d)  Religious Accommodation: § 628.

 

Appendix A

GOLDMAN v. WEINBERGER

In a March 26, 1986, decision, the United States Supreme Court ruled that an Air Force regulation prohibiting the wearing of unauthorized headgear did not violate the First Amendment rights of an Air Force officer whose religious beliefs prescribed the wearing of a yarmulke at all times.  Goldman v. Weinberger, 475 U.S. 503, 39 EPD ¶ 35,947 (1986).  The Air Force regulation, AFR 35-10, ¶ 16h(2)(f)(1980), provided that authorized headgear may be worn out of doors, but that indoors "[h]eadgear [may] not be worn . . . except by armed security police in the performance of their duties."

S. Simcha Goldman, a commissioned officer of the United States Air Force and an ordained Rabbi of the Orthodox Jewish religion, wore a yarmulke inside the health clinic where he worked as a clinical psychologist. He wore it under his service cap when outside. He was allowed to do so until, after testifying as a defense witness at a court-martial, the opposing counsel complained to the Hospital Commander that Goldman was in violation of AFR 35-10.  At first, the Hospital Commander ordered Goldman not to wear his yarmulke outside of the hospital.  When he refused to obey, the Commander ordered him not to wear it at all while in uniform.  Goldman sued the Secretary of Defense claiming that application of AFR 35-10 violated his First Amendment right to the free exercise of his religion.

The United States District Court for the District of Columbia enjoined the Air Force from enforcing the regulation against Goldman.  The Court of Appeals for the District of Columbia Circuit reversed.  The court said that the appropriate level of scrutiny to apply to a military regulation which clashes with a Constitutional right is neither strict scrutiny nor rational basis but "whether legitimate military ends were sought to be achieved."  Goldman v. Weinberger, 734 F.2d 1531, 1536, 34 EPD ¶ 34,377 (D.C. Cir. 1982).  The full Court of Appeals denied a petition for rehearing en banc, with three judges dissenting.

Supreme Court Decision

Goldman argued that a compelling interest standard, as found in Sherbert v. Vernes, 374 U.S. 398 (1983), be applied.[1]/  The United States Supreme Court disagreed.  When evaluating whether military needs justify a particular restriction on religiously motivated conduct, courts must give great deference to the professional judgment of military authorities concerning the relative importance of a particular military interest."  Goldman v. Weinberger, 475 U.S. at 507, citing Chappell v. Wallace, 462 U.S. 296, 305 (1983); and Orloff v. Willoughby, 345 U.S. 83, 93-94 (1983).  The Court reasoned that not only are federal courts not equipped to determine what impact allowing variation in headgear might have on the discipline of military personnel, but also that it is the Constitutional duty of the Executive and Legislative branches to ensure military authorities carry out the Nation's military policy.  "To accomplish its mission the military must foster instinctive obedience, unity, commitment and esprit de corps," which required the "subordination of desires and interests of the individual to the needs of the service." Goldman, 475 U.S. at 509.  "[It] need not encourage debate or tolerate protest to the extent that such tolerance is required of the civilian state by the First Amendment."  Id.  Even though the special needs of the military "[did not] render entirely nugatory . . . the guarantees of the First Amendment," the Court found no Constitutional mandate that the military accommodate the wearing of religious headgear when in its judgment this would detract from the uniformity sought by the dress regulations.  The Supreme Court held that "[t]he First Amendment therefore does not prohibit [the regulations] from being applied to the Petitioner even though their effect is to restrict the wearing of the headgear required by his religious beliefs." Id. at 510. (Emphasis added.)

Charge Processing

The Supreme Court's decision in Goldman v. Weinberger does not affect the processing of Commission charges involving the issue of religious dress under Title VII.  First, the case did not involve Title VII but the First Amendment.  Moreover, even as to First Amendment challenges, the Court emphasized that it would give greater deference to military regulations than similar requirements applied only in a civilian context.  Quoting Schlesinger v. Councilman, 420 U.S. 738, 757 (1975), the Court said that "the military must insist upon a request for duty and a discipline without counterpart in civilian life.Goldman, 475 U.S. at 508.  (Emphasis added.)

Therefore, Goldman has no bearing on the processing of Title VII religious accommodation charges.  The EOS should continue to rely on §§ 619 and 628 of Volume II of the Compliance Manual when a charge is filed with the Commission raising the issue of religious dress.

 

 

[1]/Coordination and Guidance Services, Office of Legal Counsel (Inserted by pen and ink authority in Directives Transmittal 517 date 4/20/83).

[2]/Coordination and Guidance Services, Office of Legal Counsel (Inserted by pen and ink authority Directives Transmittal 517 dated 4/20/83).

[3]/Coordination and Guidance Services, Office of Legal Counsel (Inserted by pen and ink authority Directives Transmittal 517 dated 4/20/83).

[4]/  In Sherbert the Supreme Court applied a compelling state interest standard to a state policy denying unemployment compensation benefits to a Seventh Day Adventist who lost her job because she refused to work on Saturday, the Sabbath of her religion.  This policy, though neutral on its face, forced her to choose between following her beliefs and receiving unemployment benefits; therefore, it penalized the free exercise of her constitutional liberties.