Best Ohio Race Discrimination Attorney Answer: Can my job force me to wear my hair a certain way? Can my boss force me to change my hairstyle? What should I do if my boss makes me do something against my religion? What is the best way to find an employment discrimination lawyer in Ohio?
Race, disability, and religious discrimination is unlawful under Ohio Unlawful Discriminatory Practice Statute, R.C. § 4112.02 and Title VII of the Civil Rights Act of 1964. Sometimes race, disability, or religious discrimination is not open and overt. Sometime policies that are not facial based on race, disability, or religion adverse affect employees of a certain race, disability, or religion. This is called disparate impact discrimination.
The US Army recently released Regulation 670-1, a style restriction that has placed the Pentagon in a hairy situation of whether or not the restrictions on hairstyles are racially discriminatory. The policy permits plain hair bands, hair placed in a bun, and braids so long as they are no larger than one-fourth an inch in diameter. Regulation 670-1, however, prohibits women from wearing twists and thicker braids. Hair twists and braids are hairstyles disproportionately worn by African-American women due to the thickness and malleability of the hair cuticle. Dreadlocks are also prohibited. African-American service members have protested the policy, stating that it clearly discriminates against African-Americans. African-Americans are more likely to wear their hair braided due to cultural styles and the ease of styling for everyday wear. The pentagon is currently reviewing the policy, but what are the implications for the same restrictions in the private sector?
For a workplace policy or practice to constitute racial discrimination, it must be have a negative impact on the employment of a particular race and is not necessary to the operation of the business. 42 U.S.C. § 2000e-2(a)(1) (2014). The employer has the burden of showing a substantial business justification for the policy. For example, a restaurant can ask its employees request chefs and short order cooks to place long hair in a tightly held bun or a hair net while working with food. While it may affect African-American employees who wear their hair in long dreads, the employer can easily demonstrate the need to meet health regulations regarding employee cleanliness and to prevent hair from getting in a customer’s place as a necessary operation of the business.
In Bradley v. Pizzaco of Nebraska, Inc., the Eighth Circuit Court of Appeals found that the Domino’s “no-beard” policy for pizza delivery drivers violated Title VII because Domino’s had failed to meet the substantial business justification. Domino’s did not meet the business justification standard because the drivers beard did not have any impact on the sales of pizza or the distribution of pizza to its customers, and the Court rejected the argument that customer’s preference or public opinion polls justified the policy. African-American males were adversely affected by the policy because of the predisposition by Black males to suffer from a medical condition known as psuedofolliculitis barbae (“PFB”), a skin condition fifty percent of African American males suffer from which makes shaving painful, if not medically prohibited. The court found the existence of the medical condition experienced by African-American males coupled with the lack of business justification as sufficient grounds to for a racially discriminatory workplace policy. The Court held:
Under the Griggs standard prescribed by the 1991 Act, the burden is on Domino’s to show a substantial business justification for its strict no-beard policy. This burden is a heavy one. Hawkins, 697 F.2d at 815. Domino’s must show “a manifest relationship to the employment in question,” Griggs, 401 U.S. at 432, 91 S.Ct. at 854, quoted in Dothard v. Rawlinson, 433 U.S. 321, 329, 97 S.Ct. 2720, 2727, 53 L.Ed.2d 786 (1977). Domino’s must also show a “compelling need … to maintain that practice … and that there is no alternative to the challenged practice.” Kirby, 613 F.2d at 705 n. 6 (emphasis omitted) citing United States v. St. Louis-San Francisco Ry., 464 F.2d 301, 308 (8th Cir.1972) (en banc), cert. denied, 409 U.S. 1107, 1116, 93 S.Ct. 900, 913, 34 L.Ed.2d 687, 700 (1973).
We apply Griggs to Domino’s evidence concerning the business justification defense. Domino’s offered the testimony of Paul D. Black, Domino’s vice president for operations. Black said it was “common sense” that “the better our people look, the better our sales will be.” Black also cited a public opinion survey indicating that up to twenty percent of customers would “have a negative reaction” to a delivery person wearing a beard. Further, Black speculated that Domino’s would encounter difficulty enforcing any exceptions to their dress and grooming code. Black did not offer evidence of any particular exception that was tried without success; rather, he merely stated that monitoring the hair length and moustaches of employees at five thousand Domino’s locations is difficult.
Black’s testimony was largely speculative and conclusory. Such testimony, without more, does not prove the business necessity of maintaining the strict no-beard policy. See Hawkins, 697 F.2d at 815 (“An employer cannot rely on purely conclusory testimony by company personnel to prove that a [challenged practice] is job-related and required by business necessity.”).
In addition to Black’s testimony, Domino’s offered the results of a public opinion survey it commissioned. The survey purported to measure public reaction to beards on pizza shop employees. The survey showed that up to twenty percent of those surveyed would react negatively to a delivery man wearing a beard. Even if the survey results indicated a significant customer apprehension regarding beards, which they do not, the results would not constitute evidence of a sufficient business justification defense for Domino’s strict no-beard policy. Although this Circuit has not directly addressed customer preference as a business justification for policies having a disparate impact on a protected class, cases from other circuits have not looked favorably on this kind of evidence. See Diaz v. Pan Am. World Airways, Inc., 442 F.2d 385, 388-89 (5th Cir.) (customer preference may only be taken into account when it goes to a matter affecting the company’s ability to perform the primary necessary function or service it offers, rather than a tangential aspect of that service or function), cert. denied, 404 U.S. 950, 92 S.Ct. 275, 30 L.Ed.2d 267 (1971); Gerdom v. Continental Airlines, Inc., 692 F.2d 602 (9th Cir.1982) (holding that customer preference for slim female flight attendants did not justify a discriminatory policy where weight was unrelated to job performance), cert. denied, 460 U.S. 1074, 103 S.Ct. 1534, 75 L.Ed.2d 954 (1983). The existence of a beard on the face of a delivery man does not affect in any manner Domino’s ability to make or deliver pizzas to their customers. Customer preference, which is at best weakly shown by Domino’s survey, is clearly not a colorable business justification defense in this case. Significantly, the survey makes no showing that customers would order less pizza in the absence of a strictly enforced no-beard rule.
What I found particularly interesting was that the Court did not strike the no beard policy in full, but treated PFB as a disability. In doing so, the Court held that there should be an injunction that creates “a limited exception to its no-beard policy for African American males who suffer from PFB and as a result of this medical condition are unable to shave.”
Back in February, our employment discrimination lawyers also blogged about an employer’s anti-beard policy that was in violation of Title VII based on imposing on an employee’s religious beliefs.
So, in sum, hair and beard policies may violate the race, religion and disability portions of Title VII and Ohio’s anti-discrimination laws. However, such policies, even if they have an adverse impact, may be allowed if the employer can show a justifiable business reason. But, always remember, that if you complain that a policy is discriminatory based on race, religion, or disability, your employer cannot retaliate against you for complaining. As we have often said, the retaliation claim is often better than the original discrimination claim.
If you feel that you are being discriminated based on your race, whatever race that may be, then call the right attorney. Race discrimination includes being harassed, fired, wrongfully terminated, discriminated against, demoted, wrongfully disciplined, and denied wages. When you call the right attorney to schedule a free and confidential consultation at 866-797-6040, you will meet with a race discrimination lawyer from Spitz, The Employee’s Law Firm who will help you determine the best way to pursue your legal claims.
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