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Employer is dying to resolve green Mohawk

By: dmc-admin//February 23, 2009//

Employer is dying to resolve green Mohawk

By: dmc-admin//February 23, 2009//

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Your client is the owner of an up and coming national retail establishment. She just finished interviewing the “perfect candidate” for a position at the customer service desk.

Joe has the requisite experience; he is personable, well put together, and she is confident that he will represent her store’s brand well.

Ever so confident in her ability to read people, Sally extends an offer of employment to Joe. He passes all pre-employment screening with flying colors, and he is recognized by Sally’s trainers as a high potential candidate who may run his own store or manage a cluster of stores one day.

After the new employee makes it through his first 90 days, Joe shows up to work sporting an eye-catching new hairdo — a green Mohawk! Joe has also paid the tattoo shop a visit and added a scantily clad dancing lady to his forearm. While at the tattoo shop, Joe pierced his lip and both of his eyebrows.

When the new Joe shows up to work, Sally is mortified. She has no written dress code policy, and Joe no longer resembles the clean cut gentleman she hired to be the “face of the store.” Sally is also very health conscious, and she states that she has noticed that Joe has put on about 15 pounds since she hired him three months ago.

Despite the fact that Joe is still working hard and performing to the best of his ability, Sally is concerned that Joe’s new look will scare customers away. Sally wants to tell Joe to cover up his new body art with long sleeves and return to his old look or face termination.

She also thinks Joe needs to shed a few pounds.

Sally also shares that, during a brief conversation she had with Joe prior to his makeover, Joe shared that he is experimenting with a new religion and planning to grow a beard.

Sally has called you because she wants to seek your assistance in drafting a final written warning for Joe, advising him that if he does not go back to the “Old Joe,” his employment will be terminated. While you appreciate some of Sally’s concerns regarding Joe’s new look, there are a variety to issues to consider before moving forward.

First, you will need to review state and local laws of the jurisdiction Sally’s store is located in to determine whether there are any laws governing appearance-based discrimination that would place Joe in a protected class. For instance, there could be a prohibition against taking action against Joe based upon his weight gain.

Another consideration is that Joe could potentially maintain federal cause of action for discrimination by linking his change in appearance, or at least some of the changes, to his newly found religious beliefs. Assuming Joe might be able to argue that his new look is somehow related to his religious beliefs, you will need to determine whether Sally can make an argument that accommodating Joe’s new look places an undue hardship on her business. For example, Sally might make an argument that Joe’s beard would pose a safety hazard.

There is nothing prohibiting Sally from setting forth reasonable expectations for her employees regarding professional appearance. You will want to work with Sally to formulate an appearance policy that contemplates reasonable accommodations and one that does not run afoul of federal, state or local regulations. For example, while drafting the policy, you will want to ensure that there are no rules that would have an effect of discriminating against a particular ethic group (e.g. an unnecessary minimum height requirement).

Finally, you should also help Sally create an operating procedure for handling requests for exceptions to the appearance policy to ensure that the policy is properly and consistently enforced.

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