Dress Codes and Discrimination Law

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.

34 comments for “Dress Codes and Discrimination Law

  1. john in cheshire
    June 19, 2011 at 7:14 pm

    I’m afraid that I don’t blame the school, I place all blame on the family of the lad. If they didn’t like the rule they should have sought a school that would tolerate such ‘cultural’ differences. Or maybe even sought a country where such rules don’t exist.

    • June 19, 2011 at 7:33 pm

      I’m afraid I do blame the school. They let this get to court and it takes two to tango. The hair style doesn’t affect academic matters and is largely an irrelevance. Providing the pupil is neat and tidy, that should be sufficient. Remember my comments about changing attitudes; the strict policies of a few decades ago are no longer regarded as okay by the majority. Frankly, I no longer regard them as okay. A basic uniform with guidance on things such as jewellery or not for example is all that is required.

      Common sense failed here and it wasn’t just the plaintiff displaying a lack thereof.

      • john in cheshire
        June 19, 2011 at 7:46 pm

        So we disagree.

        • June 19, 2011 at 7:49 pm

          So we do.

          • Lord T
            June 19, 2011 at 8:02 pm

            Looks like you do.

            The issue I have is that the hair length has nothing to do with what the school is doing. Long hair learns as good as short hair. Why must it be an issue.

            A private school can make whatever rules it wants for its pupils. Public schools should have no such rules.

  2. WitteringWitney
    June 19, 2011 at 8:20 pm

    What we are talking about here is adulthood and childhood. Raedwald had a post on discipline earlier today on which you commented I notice.

    Dress code does instil a pride in whatever group to which you belong, be it school, armed forces, whatever. When in public the wearer of that dress code is a representative of their unit and need to bear that in mind.

    A tad old fashioned I know, but it would do no harm for both children and adults to learn a simple lesson: As a child you do as you are told, on reaching adulthood you, hopefully, have learnt how to make an informed decision on the choices that you then meet.

    Simples really………

    • June 19, 2011 at 10:20 pm

      There is an overlap between the school and the workplace when it comes to dress codes. Again, I state that I am in favour of them in principle. I don’t however think they should be over restrictive. Common sense as always.

      I can’t say that I ever experienced any pride from any of the uniforms I’ve found myself wearing, though. Certainly not my school uniform. The uniform I currently wear only engenders the utmost contempt from me – but that’s because I detest the job and despise the employer. But that’s another story.

  3. June 19, 2011 at 9:33 pm

    “at 53, it is still thick, shoulder length and only has the odd silver streak”

    Give it time – those streaks don’t intend to stay streaky.

  4. June 19, 2011 at 10:00 pm

    ” 53, it is still thick, shoulder length and only has the odd silver streak.”

    So was mine – well rather longer than shoulder length in fact – but sadly the middle bit started rapidly evaporating when I hit 60, so enjoy it while you can!

    Seriously though, I believe libertarianism requires above all a respect for and tolerance of other’s different choices unless these cause loss or difficulty to others. Therefore it’s impicit that a rule about a personal choice, like a hairstyle, is inappropriate unless there is good cause to impose one. This might be the case for some jobs or situations if it creates a practical problem (army service for example)or is hygene related but this not the case in a school. Therefore I think the court got the right answer even though the process is a nonsense.

    • June 19, 2011 at 10:25 pm

      There was a case in the 90s; Smith v Safeway where it eventually found in favour of the employer. As it involved food handling, they decided that insisting on short hair was okay. Frankly, tying it back or using a hair net would have overcome the problem.

      The reason the court got it wrong in my opinion is that they have ruled race discrimination on the basis of family and cultural values. That opens a whole can of very wriggly worms and is incredibly silly as we are talking about fashion, not race and certainly not culture.

      Should the school have allowed corn rows? Yes as it does no harm to do so. Should it have come to court? No. It should have been settled long before then.

      • June 20, 2011 at 5:58 am

        “The reason the court got it wrong in my opinion is that they have ruled race discrimination on the basis of family and cultural values. That opens a whole can of very wriggly worms….”

        And the only people who benefit from that are the early birds. The lawyers.

  5. June 19, 2011 at 10:15 pm

    Why must it be an issue.

    It shouldn’t be an issue. While I am generally supportive of dress codes for the reasons people mention, there must also be an application of common sense. That includes recognising changing public attitudes. These days, people expect a more relaxed approach to dress and hairstyles. organisations that try to hold against that tide will find themselves fighting it in court – and in this case that has led to a disturbing precedent.

  6. Ian F4
    June 19, 2011 at 10:24 pm

    A fifty-something with shoulder length hair is calling corn rows “a bit silly” – my irony meter just exploded.

    • June 19, 2011 at 10:41 pm

      Then it clearly wasn’t functioning properly in the first place.

      Men have been wearing their hair long since we came out of the trees. The idea that longer hair is silly or wrong on a man is a construct of the early to mid twentieth century. There is nothing remotely silly about it, providing it is neatly trimmed and kept tidy. Or should I go down to the barber’s and have my hair shorn in order to fit in with the narrow conventional expectations of the majority? No, ain’t going to happen.

      Or maybe you can explain exactly why longer hair becomes silly above a certain age? And which age might that be? And what justification for that cut off, exactly? Please do, I’d be fascinated. And, perhaps, you can explain why you wouldn’t have an exploding irony meter if it was a woman in her fifties with longer hair?

      The answer of course is silly social constructs whereby people expect others to conform to their preferred ideals, but please, don’t let me stop you, I could do with a chuckle 😉

      • Ian F4
        June 20, 2011 at 6:37 am

        “The answer of course is silly social constructs whereby people expect others to conform to their preferred ideals, but please, don’t let me stop you, I could do with a chuckle ”

        I’m not the one calling corn rows “a bit silly”.

        • June 20, 2011 at 8:58 am

          Ah, I see. So if I had short hair and said that corn rows look a bit silly, that would be okay, then? Yeeeesss, riiiight.

  7. June 20, 2011 at 10:14 am

    “There is no reason why men should not be able to wear their hair long providing it is kept tidy..”

    As a sufferer of early-onset male pattern baldness and the rapid silvering of what’s left, I’m jealous – but also intrigued: what is the justification for giving just enough autonomy to permit long hair but not enough to permit it to be untidy?

    • June 20, 2011 at 10:18 am

      Sorry for your loss 🙁

      Good question, though. the answer is the same as the insistence on say business dress – or for customer facing folk, uniforms. The organisation, be it an employer or a school wishes to present a high standard of appearance. Untidiness undermines that. It’s no big deal to comb one’s hair and have it trimmed occasionally after all.

      • June 20, 2011 at 5:01 pm

        Thanks for the sympathy!

      • PPS
        June 20, 2011 at 10:18 pm

        This guy may have disagreed with you.

  8. Monty
    June 20, 2011 at 2:23 pm

    Making exceptions for racial, tribal, sectarian or cultural considerations is dangerous. First of all, there are no legal definitions of these things, which a court could use to objectively test a claim. Your culture, your heritage, religion, is whatever you claim it to be, and no-one can prove otherwise. The precedent opens up the system to all manner of bizarre demands, whether they are embraced by the child, or imposed by the parents, the imam, or the local gang leader. If the school is barred from exercising the uniform policy, it opens the door for other agencies to exercise something much worse.

    • June 20, 2011 at 4:31 pm

      Indeed, which is why this was a bad outcome. Far better to have a more relaxed dress code in the first place so that such things aren’t even an issue.

  9. June 20, 2011 at 4:18 pm

    Employers think they own you, once you’ve started working for them.

    • June 20, 2011 at 4:30 pm

      And from time to time, they need to be reminded that they do not.

  10. PPS
    June 20, 2011 at 10:30 pm

    Unfortunately both sides chose adversarial confrontation.

    A possible solution could have been:
    The boy should have checked the rules before he joined the school and changed his hairstyle to suit the school policy, if joining the school was more important to him, than his hairstyle.
    Then, if his culture, fashion sense or whatever was so important to him then he could have petitioned, the pupils, the teachers, the governors(his mother could have volunteered to become one), the local education authority, or his MP or all of them to help mediate the situation.
    Would this have fulfilled his need for autonomy and the schools need to maintain discipline?

    • June 21, 2011 at 1:11 pm

      That would have been far too sensible..

  11. June 21, 2011 at 2:38 pm

    Let’s not be like leftists calling each other heretics, but we in the Judean Peoples’ Front of libertarianism think this is a matter of contract. If your employment contract requires you to wear just a pony tail and pink lingerie, then off to the changing room with you (or quit).

    As for your judgement as to what the customers of the business expect, that’s all very interesting but he’s the guy who goes broke if the judgement is wrong. That’s why it is (or should be) his call. 🙂

    The headmaster in the cornrow case might as well resign today. His authority has been undermined and his school doomed to spiral into decay. Again, it should have been a matter of pure contract (rather than contracts rewritten according to the rules of victimhood poker in order to maximise social division and promote dependance on the state)

    • June 21, 2011 at 4:16 pm

      I wouldn’t argue with that pretty much – except to say that the employer has no place exerting his authority in such a manner that it affects the employee outside of work (with a few very specific exceptions where it directly impacts on the employer’s business). So, As I said, tying hair back is fine – I am happy with this. A am happy with the concept of dress codes while in work – I was clear about this in the post. However, such codes should be pragmatic, sensible and consulted to be effectively enforced, taking into account modern public opinion. Failure to do this will lead to the situation we have just witnessed. Insisting, for example on a short back and sides, is a step too far. One cannot grow it back at the end of the working day.

      While we might argue that the employee can refuse to enter into such a contract, in a situation as we have at the moment, with high unemployment, the employee’s choice is limited – indeed, choice may be a luxury he cannot afford. The contract, therefore, is unfairly biased in favour of one party over the other and as you well realise, contracts must be equally fair to both parties. And, frankly, that an employee has long hair, cornrows or whatever is not going to cause the employer to go bust.

      I didn’t voice any judgement about what customers expect, confining my comments to what the law allows employers to do regarding dress codes – so not too sure where you got that from. However as you mention it, I am a customer of many businesses and frequently in my experience businesses have very odd ideas about what I want or how I should react to the way they conduct their business. I’ll have more to say on this matter when I manage to leave Sainsbury’s as they have some very strange ideas indeed.

  12. September 11, 2011 at 6:32 am

    My boss emailed all of his employees that we are not allowed to wear flip-flops or sandals to teach in at school. We were all aware that flip-flops are unsafe and not exceptiable, since the dress codes for students prohibits them. I have read our school policy manual several times, and there is no dress code listed in the policy manual for teachers. I enjoy wearing sandals occasionally, especially due to our 95 to 100 degree weather that we endure in the far south. I can not even believe that he sent this e-mail to everyone considering we do not even have a dress code policy for the faculty. This is unreal, he does not want us wearing any open toe shoes or even sandals? Get Real; we are in America! Does he not know there are laws against this; it sounds like “dictatorship” to me and many others.

  13. ccp
    September 16, 2011 at 3:33 pm

    How does an open toe shoe affect a teacher’s teaching ability and better yet, how does a teacher’s open toe shoe affect the student’s ability to learn? Concentrate to the problems on hand: bullying, low test scores and student absenteeism, rewarding good behavior instead of punishing the good for the bad etc……….these are just a few problems of many that need to be focused on for improving student scores in our public schools.

    • September 16, 2011 at 4:46 pm

      It’s not about the effect per se. Dress codes are about the organisation promoting its appearance to the outside world. That is why schools like to have uniforms and why businesses will require business dress. None of this affects performance but it can impact on the business and how people perceive it – although I’m somewhat sceptical about that one. The law – in the UK at least – allows organisations to impose dress codes requiring conventional appearance i.e business suits and short hair for men and similarly restrictive attire and appearance for women.

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