HR Management & Compliance

Dress Codes: Can We Implement a Haircut Policy for Men?

Some of our male employees—our salesmen—have been coming in looking very shaggy, and we’ve even gotten a few customer complaints. We’d like to implement a policy that men have to keep their hair at collar length or shorter. Any problems with this?
— Frustrated HR Manager in Fresno

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We posed this question to Judith A. Moldover.

Do you remember the case of the successful, long-time bartender for Harrah’s Casino, Darlene Jespersen? The casino abruptly adopted a new appearance code that required all female beverage servers to wear makeup—and not just any makeup. It specified foundation or powder, blush, mascara, and lipstick. Jespersen protested that she felt uncomfortable with the resulting look and that it undermined her authority to keep bar patrons under control.

Harrah’s fired Jespersen for refusing to make up, and she sued, arguing that the requirement amounted to sexual stereotyping. A three-judge panel from the 9th Circuit, which covers California, ruled against her in December 2004. Recently, a panel of appeals judges reviewed the case, and they again ruled in favor of Harrah’s.

In general, courts have upheld fairly broad rights for employers to dictate dress and appearance codes for their customer-contact employees. This ruling is very much in that tradition. Furthermore, such codes can hold men and women to different standards if they are seen as reasonable. Common examples are allowing women to wear their hair long but requiring men’s hair to be cut above shirt collars, as you’re proposing. Another example is disallowing beards or mustaches for men. Or, as in the Harrah’s case, barring men from wearing colored nail polish or facial makeup but requiring them for women.

Many court decisions supporting such codes go back to the mid-1970s. While some employees may want the freedom to govern their own appearances in potentially eccentric ways, employers’ appearance policies are permitted to reflect what we might call “community standards.”

Note that Harrah’s male and female beverage servers were required to wear identical, unisex uniforms—black slacks, white shirts, black bowties, and black nonskid shoes—which struck the judges as fair. Had Jespersen been asked to wear anything revealing, the ruling might have been very different. Also, while Jespersen argued that buying and applying all that makeup posed a bigger burden for women than men’s duties simply to shave daily and get occasional haircuts, neither she nor her attorney offered any time or cost estimates for the makeup; had she done so, she might have prevailed.

It’s good news that most appearance codes, if reasonable, have a good chance of prevailing in court. But the devil’s in the details. So the most important thing to remember when creating and enforcing dress and appearance codes is to build some flexibility into your policies and allow room for alternatives. In other words, don’t box your managers or employees in so tightly that they have no room to maneuver.

Judith A. Moldover is Of Counsel at the New York office of law firm Ford & Harrison.