Article appeared in The Buffalo Jewish Review, February 6, 2004
A male warehouse employee who was fired for wearing an earring could not sue for sex discrimination, even though an unwritten policy allowed female workers to wear similar jewelry, a State Supreme Court has held.
The employee was fired after he refused to remove an ear stud during work hours. His supervisor had warned him previously that he would be terminated if he did not conform to the company’s grooming policy, which prohibited males, but not females, from wearing earrings.
The employee argued that the policy constituted “disparate treatment” on the basis of sex in violation of federal and state law. But the court found that grooming policies that reflect customary modes of grooming have insignificant impact on employment opportunities and do not constitute sex discrimination.
The court found that wearing an ear stud is not an immutable characteristic. The employee can remove an ear stud or cover it with a bandage. He does not contend wearing an ear stud involves a fundamental right. Nor does he contend that the unwritten personal grooming code perpetuated a sexist or chauvinistic attitude in employment that significantly affects his employment opportunities. Therefore, the court found that the personal grooming code prohibiting males but not females from wearing earrings or studs was not unlawful discrimination.
Sex discrimination provisions under federal law were enacted to stop sexist or chauvinistic attitudes in the workplace that significantly affect a person’s abilities to work and have an effect on employment opportunities.
Federal and state laws were not meant to prohibit employers from instituting personal grooming codes, which don’t have an effect on employment rights.
