Hairstyle Is Not a Protected Category but Sexual Orientation Likely Is
By Ruder Ware Alumni
September 20, 2016
Several recent decisions have opened the door to further scrutiny regarding discrimination and the basis for a finding of discriminatory conduct by an employer. These decisions continue to show the volatility of discrimination claims and determinations of whether or not an employee can claim discrimination based on company actions.
In one court decision, it was determined a company policy that required professional hairstyles on employees did not rise to a per se violation of Title VII on the basis of race discrimination. In this case, the company had a policy requiring professional hairstyles that was interpreted to mean dreadlocks was not an appropriate hairstyle. The EEOC pursued a claim against the company arguing that the hairstyle policy was a per se violation of Title VII because unacceptable hairstyles could be directly attributed to individuals of a particular national origin. The EEOC did not argue that the company policy had an unequal adverse effect on a particular race but rather argued that the establishment of such a policy was in direct violation of federal law. The Federal Court of Appeals refused to extend the protections of Title VII for race discrimination to such a level of protection simply based upon the policy developed by the company. Rather, the Court of Appeals held that a policy of that type did not constitute per se discriminatory conduct and the EEOC failed to show that the policy was applied in a manner that had discriminatory effects on a particular race or group of employees. The Court held that the protection of race discrimination did not include general policies requiring a professional hairstyle for all employees of the company.
The EEOC has recently issued a bulletin confirming its position that members of the LGBT (Lesbian, Gay, Bi-sexual and Transgender) community were protected from employment discrimination under Title VII of the Civil Rights Act. The EEOC will pursue claims against companies that discriminate based upon any type of sexual orientation, especially when used in the employment selection process. A recent decision from the 7th Circuit Court of Appeals, however, held that sexual orientation was not a protected category under the sex discrimination protections of Title VII. This decision runs contrary to the recent pronouncements from the EEOC and therefore, EEOC is pursuing an appeal of the decision. This debate over whether sexual orientation is prohibited under Title VII is an interesting intellectual endeavor, however, most states prohibit discrimination based on sexual orientation within the state discrimination laws, so companies in many states around the country must comply with such laws and avoid sexual orientation discrimination. Sexual orientation discrimination is clearly prohibited under the Wisconsin Fair Employment Act, so Wisconsin employers need to be careful in making decisions about hiring and must ensure a harassment-free workplace as it relates to employees with different sexual orientation backgrounds. Transgender issues have become quite popular of recent days, however, there have not been decisions at the state or federal level regarding protection against conduct in the workplace directed at transgender employees. Employers must, however, be sensitive to this issue and take steps to prevent inappropriate conduct that interferes with the sexual identity of its employees.
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