Misunderstood in the Workplace and Appearance Law

While employers have a great deal of latitude in determining what is an appropriate appearance for the workplace the key to an effective appearance policy is to understand the brand and company culture they want to project in the community.  There is no such thing as a one-size fits all policy.

For example, a high-end restaurant may lawfully prohibit unusual earrings, piercings, and tattoos, and require hair to be neat.  It may also impose gender-specific dress code requirements, e.g., requiring male and not female employees to keep their hair short.  Recent case law has even upheld a Nevada casino’s right to require only females to wear makeup while on the job.  The same restrictions, though, would likely be unnecessary and perhaps discouraged in a surf shop.

Employees in more conservative workplaces are often asked to cover up tattoos on the neck, legs and arms.  An interesting issue that has yet to be resolved is whether a Polynesian-related tattoo must be covered at work by an employee who views the tattoo as deeply religious or a reflection of deeply held cultural beliefs.  Could this rule in application constitute ancestry and/or religious discrimination in violation of Hawaii’s Employment Practices statute?

There are limitations to the standards a company may impose on its employees, regardless of brand or the company culture.  Employers may not require females to wear low cut blouses, short skirts, etc.  Nor may employers make hiring based on gender, unless such gender requirement is a “bona fide occupational qualification (“BFOQ”).”

An issue that is raised more often is to what extent a person’s sexual orientation or gender identity must be accommodated in the workplace.  Under Hawaii law, employers are prohibited from discriminating against a person because of their sexual orientation.

However, while it is protected within the context of public accommodation and housing law, gender identity (including transvestites and transsexuals) is not a protected category under Hawaii’s Employment Practices statute.