Generic Appearance and Grooming Policy update 2-26-16 and 1-19-16 memo

On January 19, 2016, we distributed a memo regarding the New York City Commission on Human Rights’ (the “Commission’s”) guidance prohibiting discrimination based on gender identity and gender expression (the “Guidance”), which is attached here. Pursuant to the Guidance, employers with four (4) or more employees are prohibited from imposing on employees any uniform or grooming standards that are gender specific, regardless if the same are perceived as innocuous. For example, employers cannot require women to wear a skirt suit and men to wear a traditional suit. Employers are permitted to impose such uniform standards, but they cannot require an employee to wear one over the other. This strays drastically from current state and federal law, which permit the requirement of grooming standards and uniforms that are gender specific so long as the requirement does not impose an undue burden on the employee.

Under the Guidance, if instead, an employer permits women to wear skirts, for example, men must be permitted to do the same. In this instance, because the law allows an employer to impose grooming standards on both men and women, an employer can require that both men and women must shave their legs and wear stockings if they choose to wear a skirt to work.

In our view, this forces employers, particularly those in the hospitality industry, to reconsider grooming and dress code policies that presently can be perceived as having a significant level of detail and differentiation between genders. We provide here examples of gender specific policies, which under the Guidance are no longer lawful, against gender-neutral policies we believe are consistent with the Guidance: