Policy Banning Extreme Hair Colors Upheld

A former employee who was repeatedly counseled for wearing bright-burgundy braids unsuccessfully claimed that her termination from employment was based on race discrimination when the employer was able to demonstrate a consistent application of its personal appearance guidelines.

The plaintiff, who is black, worked as a customer service representative for United Parcel Service (UPS) at its facility in Overland Park, Kan. During the plaintiff's employment, all employees at the facility were subject to UPS's personal-appearance guidelines, which state, "Hairstyles and hair color should be worn in a businesslike manner." It was uncontroverted that the policy prohibited hair colors such as purple, pink, fuchsia, crimson and burgundy, and that UPS enforced the guidelines on several occasions. In June 2014, the plaintiff reported to work with "micro braid extensions" in her hair that were burgundy with blond highlights. The HR manager counseled the plaintiff that her hairstyle and color did not comply with the guidelines and that she needed to change them. The plaintiff removed the braids within two months of this meeting.

In April 2015, the plaintiff changed her hair again, in preparation for a wedding, to a "brighter burgundy." Believing that the plaintiff's hair color was creating a distraction in the workplace, the HR manager informed her that her hair color did not comply with the guidelines and that she had until mid-June to change it. Also, the plaintiff received a final written warning indicating that any further violations could result in termination. The plaintiff signed the warning and agreed to change her hair color by mid-June 2015.

On June 16, 2015, the plaintiff's hair color still did not comply with UPS's guidelines. Consequently, the company terminated the plaintiff for failure to comply with its personal-appearance guidelines.

The plaintiff alleged that the company discharged her on the basis of her race, in violation of Title VII of the Civil Rights Act of 1964.

To prove her claim, the plaintiff had to establish:

• Membership in a protected class.
  
• An adverse employment action.
  
• Circumstances giving rise to an inference of discrimination.
  

If all of this was established, the burden would then shift to the defendant to assert a legitimate, nondiscriminatory reason for the adverse employment action. If the defendant met this burden, summary judgment against the plaintiff would have been warranted, unless she introduced evidence that the stated nondiscriminatory reason was merely a pretext for discriminatory intent.

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The plaintiff contended that pretext could be found by comparing UPS's treatment of her with its treatment of white employees who violated the guidelines concerning hair color. The court explained, however, that "to provide a basis for reliable comparison, the other employee must, in fact, be similarly situated—that is, reporting to the same supervisor, held to the same standards, and afoul of those standards to at least the same degree."

The court remarked that the plaintiff's efforts to establish pretext by comparing similarly situated white employees failed because evidence demonstrated that UPS enforced the guidelines with respect to white employees with extreme hair colors. In April 2014, a white employee was told to change her fuchsia hair color, while on June 15, 2015, a white employee was told to change her bright-red hair color. In addition, the court observed that since the plaintiff's termination, two other white employees were counseled about hair color.

The plaintiff further argued pretext because UPS improperly relied on "subjective criteria" concerning appropriate hair color in rendering its decision. While the guidelines as written may seem subjective (requiring that hairstyles and hair color be worn "in a businesslike manner"), the court stressed it was "undisputed" that UPS enforced the hair color aspect of the guideline only with respect to those employees who reported to work with "extreme hair colors such as fuchsia, purple, pink and crimson." Moreover, the plaintiff did not dispute that her hair color at the times in question violated the guidelines under any standard. Finally, at least one of UPS's reasons for terminating the plaintiff's employment was not subjective at all—the plaintiff's failure to keep her agreement to comply with the personal-appearance guidelines.

Ewing v. United Parcel Service Inc., D. Kan., No. 16-cv-2641-JWL (Jan. 26, 2018).

Professional Pointer: Consistent application of policy includes a defined and communicated interpretation of the policy, as well as the recommended corrective approach for any violations, such as progressive discipline.

Roger S. Achille is an attorney and professor at Johnson & Wales University in Providence, R.I.

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