Gray Areas in Controlling Employee Lifestyles

Employees’ lifestyle choices can create endless gray areas for employers.Smoking, fashion, and even issues of dating and off-the-job behavior have theireffects on the workplace–but how much say can human resources have? Can you setguidelines for lifestyle, and if you do, how far should you go? MicheleCoyle, apartner in the Los Angeles office of the law firm Hogan & Hartson LLP,offers insight.

Can a company simply forbid smoking in the workplace?

In many states, smoking is not allowed in enclosed spaces at all. But yes, ifyou are in a state where there are no fixed rules on smoking, you may allowsmoking only in designated areas. While there may be some employees whodisagree, the management’s prerogative for maintaining an orderly workplace andaddressing safety and health concerns always trumps a concern from employeesthat their privacy has been restricted and their individual freedoms have beenimpinged upon.

 

Can a company simply refuse to hire smokers?

No. The restrictions on discrimination in hiring are flexible, but there aresome pretty fixed boundaries. To single out a group and treat them differentlythan another group–not for job skill or business-based criteria but rather fora lifestyle choice–that’s something most courts and EEO agencies would findimpermissible.

 

When it comes to employees’ clothing, how much can a company dictate?

It depends on the situation. In California, for instance, you can’t have yourdress codes prohibit female employees from wearing pants. However, an employeris certainly entitled to address the subject, and tie it to the workplace andthe business needs of the company. It’s definitely a good idea to address dressand grooming standards in company policies. That way, the company’s procedureswill be clearly stated in writing, which is always a good idea when you’readdressing personal preferences. You can instruct employees to dress inaccordance with their position and to always be “neatly attired.” That’s thelanguage that’s often used. There are ways you can go about addressing specificsin your workplace if you need to. If you’re in a very formal work environmentwhere all customers and clients are more formally dressed, then using a rule ofthumb that would, for instance, require employees to be appropriately dressed inmeetings with clients and customers and allow for casual dress where there’s nocontact with clients and customers is a reasonable line to draw.

 

How should hairstyles and grooming issues be addressed?

There’s been quite a bit of litigation on discrimination in grooming. Youneed to be appropriate with respect to your grooming standards, and they must bebusiness based. There has been, for example, litigation over requiring men tohave short hair, where there was no business basis for that requirement. There’sbeen litigation over prohibiting beards where there were no safety or healthreasons for such a prohibition. There’s even been litigation over requiring mento wear ties. Again, a basic rule of thumb: There needs to be a business basisfor any procedures in the dress and grooming area, and as long as there’s areasonable basis for the procedure, it will be found to be legal and notdiscriminatory.

 

Can you base these guidelines on your clients? For instance: Our clientsexpect men to have short hair, or women to wear skirts.

That would be a gray area. To be reasonable, most policies must focus onpresenting a neat and professional appearance. Long hair can be just as neat asshort. So it really just comes down to circumstances. There may be safetyreasons, particularly in a manufacturing situation, where long hair, if it’s notrestrained, may pose a safety hazard. Obviously that’s a legitimate restrictionin that circumstance.

 

What happens when dress codes impinge on an employee’s religion or ethnicity?

That’s been a big concern since 9/11. There must be a valid business reasonfor the dress code to restrict employee from dressing in accordance withreligious beliefs. There has been quite a bit of recent litigation on thatsubject. It’s fair to say that if an employee’s religious beliefs requirewearing a hair covering or a particular style of clothing, employers arerequired to reasonably accommodate when it doesn’t impose an undue burden. Inmost circumstances the employers have been able to do so. But, as in theprevious example, it would be completely out of bounds for an employer to usecustomers’ preference for employees who do not cover their hair as a basis forimposing a dress code that would eliminate anyone from employment whosereligious beliefs require them to do so.

 

Can an employer forbid coworkers to date or marry?

This is the issue that really gets the most attention and causes the mostuproar in the workplace, and there’s been a lot of litigation. Employers canreasonably refuse to allow married couples to work in the same department ordivision or facility if that conflicts with their duties or company policies orposes an extra hazard to them because they’re a married couple. The ordinarycourse taken by most employers is to limit supervision to non-family members.Other companies prohibit any such hiring.

 

So a company can simply say it will not hire married couples?

Yes, a company can state in writing that it restricts or denies employment ofemployees’ spouses or relatives. Most companies do so on the basis that it’sreasonable because they’re preventing favoritism or employee conflicts. There’sbeen quite a bit of litigation in the past on the unequal enforcement of thesepolicies, where the rules were interpreted to mean a wife cannot be hired butdidn’t apply to [hiring husbands]. That is going to be successfully challengedand has been. In California, the Fair Employment and Housing Commission providesthat if co-employees marry after having been hired, an employer shall makereasonable efforts to assign job duties to minimize problems of supervision,safety, security, or morale. That’s a pretty good measure of what a validbusiness-based policy would consider. It’s appropriate that when a company has ano-spouse rule, the employer allow the affected spouses to decide who leaves andwho stays. That’s an evenhanded way to do it.

 

Can an employer forbid coworkers to date?

Often with respect to dating, there are some employers that restrictrelationships between coworkers when there is a supervisor involved. That’s alegitimate distinction to draw. There’s been a long history of litigationinvolving sexual-harassment claims where relationships between coworkers havebeen terminated and one of those involved was a supervisor. Very often,companies decide they don’t want to run the risk of potential claims wherethere’s been a romantic relationship that’s now terminated. Therefore, theyconsider it appropriate to put into place policies that prohibit such personalrelationships between coworkers in which one is a supervisor. From a managementstandpoint, the easier way to approach this is to require the supervisor tonotify management of the relationship so management can then decide what, ifany, action it wishes to take regarding evaluations and other supervisoryactivities.

 

What about guidelines that address employees’ behavior off-premises–shouldan employer stay away from that area?

Ordinarily you’re getting into a gray area whenever an employer tries to dealwith off-premises conduct. The focus would be very specifically on whether theconduct at issue harms the company’s reputation and whether the employee isunable to perform his or her job. Perhaps the outside conduct has an effect onsubordinates in, say, the context of an outside incident involving racial slursor assault. If you have circumstances where that results in that employee’ssubordinates having concerns about working for him or her, those areas wouldlikely be the focus in any inquiry into whether the company’s consideration ofsuch conduct is appropriate. There have been challenges made by employees to anytermination that’s the result of their off-work behavior. Courts have gone bothways on that, depending on the facts. The issues involved in such disputes arevery fundamental ones. The employee will be making a claim for a right toprivacy, which is a constitutional claim. It’s an area where employers need totread very carefully, and there must be a demonstrated business impact for thepolicy and the behavior that’s at issue.

 The information contained in this article is intended to provide useful information on the topic covered, but should not be construed as legal advice or a legal opinion. Also remember that state laws may differ from the federal law.

Workforce, February 2003, pp. 64-65 — Subscribe Now!