A policy requiring different dress or grooming for men and women may be viewed as sex/gender discrimination and also may violate gender identity and expression protections in California. Moreover, dress codes that reinforce gender stereotypes are not appropriate.

Employers may not single out or discriminate against a particular group of persons on the basis of sex, gender, gender identity and gender expression in regard to appearance or behavior, including transgender employees and employees in transition.

California employers must allow employees to appear or to dress consistently with their gender identity or gender expression.1 For more information, see Gender, Sex, Gender Identity and Expression.

• If you think you have a business necessity, you should consult with your attorney as the issue of sex, gender, gender identity and expression is a protected right in California enforced by the Civil Rights Department.

You must also reasonably accommodate an employee’s religious creed that affects their dress standards, physical appearance or grooming.2

FEHA specifically protects religious dress and grooming practices. Dress and grooming policies cannot discriminate against employees on the basis of religion, unless you can demonstrate undue hardship or a safety concern. It may be considered undue hardship for you to totally abandon an otherwise reasonable uniform, clothing or grooming requirement if it relates directly to bona fide and identifiable business reasons, or if mandated by government occupational safety regulations.3

It is not a reasonable accommodation of a religious dress or grooming practice to segregate the employee from the public.

To prevent the risk of discrimination claims, carefully consider if particular dress requirements are truly job related. For more information, see “Reasonable Accommodation and Religion” in Religion.

Tattoos and Piercings

Discrimination laws do not protect people who suffer adverse employment actions because of their tattoos and body piercings. You are free to create policies that prohibit visible tattoos and body piercings. However, you must apply the policy consistently without regard to race, age, sex or any other protected class.

• Policies cannot discriminate against employees on the basis of religion unless you can demonstrate undue hardship or a safety concern.

Hairstyles

Finding that workplace dress codes and grooming policies that prohibit certain hairstyles can have a disparate impact on race and may be a proxy for racial discrimination, California law prohibits discrimination against employees based on their hairstyles, including hair texture and protective hairstyles such as braids, locks and twists.

Employers should review their workplace dress code and grooming policies to ensure compliance and consult legal counsel for any necessary changes.

1. Govt. Code sec. 12949