Gray areas in controlling employee lifestyles - Legal Insight

Employees' lifestyle choices can create endless gray areas for employers. Smoking, fashion, and even issues of dating and off-the-job behavior have their effects on the workplace--but how much say can human resources have? Can you set guidelines for lifestyle, and if you do, how far should you go? Michele Coyle, a partner in the Los Angeles office of the law firm Hogan & Hartson LLP, offers insight.

Can a company simply forbid smoking in the workplace?

In many states, smoking is not allowed in enclosed spaces at all. But yes, if you are in a state where there are no fixed rules on smoking, you may allow smoking only in designated areas. While there may be some employees who disagree, the management's prerogative for maintaining an orderly workplace and addressing safety and health concerns always trumps a concern from employees that their privacy has been restricted and their individual freedoms have been impinged upon.

Can a company simply refuse to hire smokers?

No. The restrictions on discrimination in hiring are flexible, but there are some pretty fixed boundaries. To single out a group and treat them differently than another group--not for job skill or business-based criteria but rather for a lifestyle choice--that's something most courts and EEO agencies would find impermissible.

When it comes to employees' clothing, how much can a company dictate?

It depends on the situation. In California, for instance, you can't have your dress codes prohibit female employees from wearing pants. However, an employer is certainly entitled to address the subject, and tie it to the workplace and the business needs of the company. It's definitely a good idea to address dress and grooming standards in company policies. That way, the company's procedures will be clearly stated in writing, which is always a good idea when you're addressing personal preferences. You can instruct employees to dress in accordance with their position and to always be "neatly attired." That's the language that's often used. There are ways you can go about addressing specifics in your workplace if you need to. If you're in a very formal work environment where all customers and clients are more formally dressed, then using a rule of thumb that would, for instance, require employees to be appropriately dressed in meetings with clients and customers and allow for casual dress where there's no contac t with clients and customers is a reasonable line to draw.

How should hairstyles and grooming issues be addressed?

There's been quite a bit of litigation on discrimination in grooming. You need to be appropriate with respect to your grooming standards, and they must be business based. There has been, for example, litigation over requiring men to have short hair, where there was no business basis for that requirement. There's been litigation over prohibiting beards where there were no safety or health reasons for such a prohibition. There's even been litigation over requiring men to wear ties. Again, a basic rule of thumb: There needs to be a business basis for any procedures in the dress and grooming area, and as long as there's a reasonable basis for the procedure, it will be found to be legal and not discriminatory.

Can you base these guidelines on your clients? For instance: Our clients expect men to have short hair, or women to wear skirts.

That would be a gray area. To be reasonable, most policies must focus on presenting a neat and professional appearance. Long hair can be just as neat as short. So it really just comes down to circumstances. There may be safety reasons, particularly in a manufacturing situation, where long hair, if it's not restrained, may pose a safety hazard. Obviously that's a legitimate restriction in that circumstance.

What happens when dress codes impinge on an employee's religion or ethnicity?

That's been a big concern since 9/11. There must be a valid business reason for the dress code to restrict employee from dressing in accordance with religious beliefs. There has been quite a bit of recent litigation on that subject. It's fair to say that if an employee's religious beliefs require wearing a hair covering or a particular style of clothing, employers are required to reasonably accommodate when it doesn't impose an undue burden. In most circumstances the employers have been able to do so. But, as in the previous example, it would be completely out of bounds for an employer to use customers' preference for employees who do not cover their hair as a basis for imposing a dress code that would eliminate anyone from employment whose religious beliefs require them to do so.

Can an employer forbid coworkers to date or marry?

This is the issue that really gets the most attention and causes the most uproar in the workplace, and there's been a lot of litigation. Employers can reasonably refuse to allow married couples to work in the same department or division or facility if that conflicts with their duties or company policies or poses an extra hazard to them because they're a married couple. The ordinary course taken by most employers is to limit supervision to non-family members. Other companies prohibit any such hiring.

So a company can simply say it will not hire married couples?

Yes, a company can state in writing that it restricts or denies employment of employees' spouses or relatives. Most companies do so on the basis that it's reasonable because they're preventing favoritism or employee conflicts. There's been quite a bit of litigation in the past on the unequal enforcement of these policies, where the rules were interpreted to mean a wife cannot be hired but didn't apply to [hiring husbands]. That is going to be successfully challenged and has been. In California, the Fair Employment and Housing Commission provides that if co-employees marry after having been hired, an employer shall make reasonable efforts to assign job duties to minimize problems of supervision, safety, security, or morale. That's a pretty good measure of what a valid business-based policy would consider. It's appropriate that when a company has a no-spouse rule, the employer allow the affected spouses to decide who leaves and who stays. That's an evenhanded way to do it.

Can an employer forbid coworkers to date?

Often with respect to dating, there are some employers that restrict relationships between coworkers when there is a supervisor involved. That's a legitimate distinction to draw. There's been a long history of litigation involving sexual-harassment claims where relationships between coworkers have been terminated and one of those involved was a supervisor. Very often, companies decide they don't want to run the risk of potential claims where there's been a romantic relationship that's now terminated. Therefore, they consider it appropriate to put into place policies that prohibit such personal relationships between coworkers in which one is a supervisor. From a management standpoint, the easier way to approach this is to require the supervisor to notify management of the relationship so management can then decide what, if any, action it wishes to take regarding evaluations and other supervisory activities.

What about guidelines that address employees' behavior off-premises--should an employer stay away from that area?

Ordinarily you're getting into a gray area whenever an employer tries to deal with off-premises conduct. The focus would be very specifically on whether the conduct at issue harms the company's reputation and whether the employee is unable to perform his or her job. Perhaps the outside conduct has an effect on subordinates in, say, the context of an outside incident involving racial slurs or assault. If you have circumstances where that results in that employee's subordinates having concerns about working for him or her, those areas would likely be the focus in any inquiry into whether the company's consideration of such conduct is appropriate. There have been challenges made by employees to any termination that's the result of their off-work behavior. Courts have gone both ways on that, depending on the facts. The issues involved in such disputes are very fundamental ones. The employee will be making a claim for a right to privacy, which is a constitutional claim. It's an area where employers need to tread v ery carefully, and there must be a demonstrated business impact for the policy and the behavior that's at issue.

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