Q. We are a retail company. Our public image and our reputation for being a patriotic corporate citizen are both very important to us. For this reason, we have traditionally preferred to hire people who effectively present our image to the public. We tend to hire a predominately young workforce and individuals with trendy, but “clean cut” and energetic appearances. I also don’t want to be forced to hire people with head coverings or facial hair, which we don’t allow. Can the government force us to do that? Does it help if we don’t say anything in interviews or files about these appearance issues, but just instruct managers to police them quietly?
A. You’re right to be concerned. Federal and state laws generally prohibit employers from basing employment decisions, including hiring, on age and it is highly likely your practice would be seen to do that, whatever your intent. You probably need to work on setting standards that foster the image you want, but that embrace some diversity in the workforce and don’t result in older workers being screened out.
As for head coverings and facial hair, there is a newly released EEOC guidance on Religious Garb and Grooming in the Workplace. The guidance provides that, if head coverings or facial hair are worn for religious reasons, an employer has a duty to consider accommodating an employee unless it can show undue hardship.
One example in the new guidance addresses a situation where a manager does not say anything to an applicant about her head covering, but decides not to hire her based on the assumption that it is worn for religious reasons and would be a problem under the company policy. That would be regarded as discriminatory by the EEOC. It would be better to discuss dress policy in the interview so that, if the item is worn for religious reasons, the employer can engage the applicant in discussion about whether some accommodation would be reasonable.
Because the law generally prohibits asking about protected-class status (like religion), however, any interview questions should initially be neutral, noting that the company has a dress or grooming policy and asking if the applicant has any reason that it would be difficult to comply.
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