Hair Raising Tales

Question. I am a firefighter with a ponytail. Can my employer make me trim it or cut it off?

Answer. The short answer is the employer can create a grooming standard and create an exception based on gender. There has been a lot of controversy related to the “right” to display tattoos, piercings, beards, hair length, coloring your hair a bizarre color and other personal displays of individuality in a public service.

The police, in their many litigations over tattoos and other individual displays, allegedly protected under First Amendment rights; the courts have found in favor in of the administration indicating administration can create grooming standards as long as they do not discriminate against the employee. Meaning:  policy must be administered equally among ALL employees banning or requiring covering of tattoos, no beards or long hair. In one case, the police chief was allowed to require his police officers to cover their tattoos while on duty and has spread to the fire service as well. These rulings are being bootstrapped into the fire services.

The military has recently found themselves in a lax time frame allowing tattoos and long hair going beyond the ability of the military to deal with the proliferation of tattoos , moustaches, beards and long hair and have tightened those rules of what I will call, “public display” to create a “uniform look” among members of the military. Even in this formal institution, there are exceptions in the rules for gender differences in hair length and hair length and beards with special operators.

I fondly remember Admiral Elmo Zumwalt (circa 1970’s) with his famous “Z-Grams” allowing long hair for sailors during his tenure as Chief of Naval Operations (CNO). For you Marines, Air Force , Coast Guard or Army: he was our boss with a liberal view of grooming standards.  

His most failed Z-Gram was the ability of sailors to grow “long” hair. OMG, this set off a storm of controversy as sailors took advantage of that ability to grow some serious hair. Ultimately and within a year, this Z-Gram was replaced with the original grooming standard.

Notwithstanding the possible safety nexus, there are numerous cases going back to the mid 1970’s indicating the employer can create policy related to the grooming standard of their employees.

Over 35 years ago, federal appeals courts in three circuits concluded that the wearing of long hair is not protected by the First Amendment. Richards v. Thurston, 424 F.2d 1281 (1st Cir. 1970); Freeman v. Flake, 448 F.2d 258 (10th Cir. 1971); Karr v. Schmidt, 460 F.2d 609 (5th Cir. en banc 1972).

Then, in 1976, the U.S. Supreme Court upheld a “paramilitary” image of uniformed public employees, and found that hairstyle regulations do not violate the federal constitution. Kelley v. Johnson, 425 U.S. 238, 96 S.Ct. 1440 (1976). Although a “cop” case, there is bootstrapping of this ruling to the fire service.

In an article in 2014 (Firefighter Tattoos and First Amendment Protection) authored by Dr. Beth Murphy and myself, indicates consistency and respect for diversity are keys to a successful policy. Fire departments can limit employees' personal expression on the job as long as they do not impinge on their civil liberties as noted by the Equal Employment Opportunity Commission (EEOC): employers are allowed to impose dress codes and appearance policies as long as they do not discriminate or hinder a person's race, color, religion, age, national origin, or gender.  Substitute hair in lieu of tattoos in this publication and look at this issue from a different perspective.

This firefighter is going to have a difficult time prevailing in a lawsuit against his department related to the hair controversy unless the policy is discriminatory based on several factors to include his gender, religion or is against public policy.

Endnotes

Firefighter Tattoos and First Amendment Protections. http://www.fireengineering.com/articles/print/volume-167/issue-4/departments/fire-service-court/firefighter-tattoos-and-first-amendment-protection.html

2007 (1) AELE Mo. L. J. 201. Employment Law Section – January, 2007. Wayne W. Schmidt Employment Law Editor