I am a man with long hair. Not so long as it used to be – a decade ago it was down to my waist. these days, I keep it trimmed to shoulder length. For most of my life, my long hair has been something unremarked. It’s the way I choose to wear it and that’s that – except, perhaps to remind the less hirsute among you that at 53, it is still thick, shoulder length and only has the odd silver streak.
So why all this and what has it got to do with liberty? Ah, well, now there’s the question. During 2000 our HR manager came up to me and told me that I should get my hair cut. At that time, it was just below shoulder length and I was having it cut every four weeks or so to keep it tidy. This stopped immediately I was told to get it cut – hence a year later it was down to my waist. This is the thing, though; employers can under law insist upon certain codes of appearance. It is not unusual for them to insist upon conventional appearance. Since the turn of the twentieth century, for men, this has meant short hair, despite longer hair becoming popular again during the nineteen sixties and seventies. Yes, absolutely, they can. There is case law to back it up – Schmidt v Austicks Bookshops (1978). Shortly after the sex discrimination act became statute, Schmidt challenged her employer’s insistence that women should not wear trousers. The tribunal found in favour of the employer. They decided that different codes for men and women are acceptable under the act providing the codes are equally restrictive and they are written down and clearly communicated to the affected employees. Generally, cases that have gone against the employer since then have done so because the employer failed in that respect – the department of work and pensions that insisted upon men wearing ties, yet was happy for women to wear casual tops failed for that very reason.
What has not happened is Schmidt being overturned. So when I was told in no uncertain circumstance to get my hair cut shorter, Schmidt would have applied – if Railtrack had a written dress policy and if all men with longer hair were being targeted, that is. As it was no such policy existed and I was the only one being affected. I merely reminded the HR manager of her own polices – or lack thereof and that was the end of the matter.
The reason that this is a libertarian issue is because we have competing liberties – the liberty of the individual to have autonomy over his appearance and the liberty of the organisation to have control over how his business appears to the outside world. Now, for most of us, this is managed with common sense and compromise. There is no reason why men should not be able to wear their hair long providing it is kept tidy – or tied back, for instance. It may well be reasonable of an employer to insist that no facial piercings are worn in the workplace or that tattoos are covered. Providing any arrangement is reversible when leaving work, the compromise is a reasonable one and everyone should be satisfied. The armed forces are an exception to this in that they are far more rigid and anyone signing up knows what they are letting themselves in for. They don’t do compromise and I don’t expect them to.
I fully expect Schmidt to be overturned eventually. Time and changing attitudes will eventually erode its relevance. No one these days likens a woman wearing trousers to a man wearing a T shirt which was the turning point of Schmidt.
Yet, every so often there is another challenge to dress codes, suggesting that another organisation has managed to cock it up. There has been a challenge to the principle of dress codes just recently. Schmidt doesn’t apply as sex discrimination was not the issue, racial discrimination was the complaint. This individual is claiming that the wearing of his hair in corn rows is cultural and this must be respected by the school. Bizarrely, the claim succeeded. Given that white people also wear their hair in this fashion – and it is a fashion – I fail to see how the cultural argument succeeded. It has, however, set a precedent and it’s not a good one. An individual can now claim that their fashion choice is part of their culture and family values and away they go, undermining the dress code of the organisation and there’s precious little the organisation can do – how do you define such things as culture if a hair fashion is now determined to be cultural?
That said, the school in question asked for it. Corn rows aren’t particularly outrageous. A bit silly, but so is the Mohican or the mullet and probably less so. I’d even go so far as to argue that they are neater than either of these examples. People grow out of these things (hopefully) and fashions change. But did it really breach the uniform policy and is the policy so rigid as to preclude it? Surely, neat and tidy should be sufficient – with perhaps a caveat that longer hair be tied back or cut above the shoulder, for example. If they let it get to court, they deserved the judgement they got for being too dogmatic in their approach. However, thanks to both them and the boy’s family – failing to take into account an individual’s “family traditions” now constitutes racial discrimination. Thanks guys, thanks a bunch.