Dog Grooming Guidelines

[Maitane Roderiques]

Thecontents of this document do not have the force and effect of law and are not meant to bind the public in any way. This document is intended only to provide clarity to the public regarding existing requirements under the law or agency policies.

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.

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.

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.)

(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.

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.

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.)

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).)

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.)

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.

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.

3a8082e126