Lis & the Single Girl: Appearance in the Workplace

Single and fabulous? Well then this is the column for you!

Ever wish you had your own personal Carrie Bradshaw to answer your questions — not just about what to do if your boyfriend dumps you via text message — but serious issues that confront us? This special edition of “Lis on Law” will address topics that single women are faced with and that everybody wonders about — but no one has time to figure out.

Between work, working out, dating and maintaining a social life, it’s tough to find time to do much else. So, read up and prepare to be fully armed for brunch this weekend with your friends with some super conversation topics! Your pals will be amazed!

I’d like to spend this week with a series on issues that we women face in the workplace everyday. There’s often a double standard for ladies at work. We walk a fine line between professionalism and femininity. So, I’m going to explore some issues that we face and I’ll explain how to deal with the legalities of these scenarios. Ladies, this series is for the “working girl!”

Part I - Clothes and Jewelry

“I’m now in my last year of college and am applying for jobs with big financial companies. I heard that men wearing earrings is taboo, and I was wondering whether an employer could actually fire someone for wearing too much jewelry.” — Cynthia, New York

In response to Cynthia’s question, it’s common sense to most of us in the workplace, especially at a big companies, you MUST dress conservatively. This is particularly important at the job interview. An interview is not the place to show off your keen fashion sense or your gorgeous gams.

But let’s say that you’ve got the job and are wondering whether your double pierced ears or your brightly colored bangles are appropriate for the office. The best thing to do is to go to human resources and ask for a written copy of the dress policy. If that doesn’t exist, ask for an informal summation of what is or is not appropriate. Better safe than sorry!

Do employers have a right to restrict what you wear? Absolutely. What if you were working as a McDonald's cashier and you decided not to wear your uniform? It’s no different in big business. You are expected to display a certain image associated with your work environment. If your employer feels that you take away from their image of professionalism, you deserve at least some kind of warning. But if you choose not to conform to their standards, whether you’re an at-will employee or not, chances are that they have a right to let you go.

Federal law does not cover employee dress codes. Generally, employers can set their own dress codes, just as long as what they wish does not discriminate by gender, religion, race, disability or any other federally protected status, and so long as there are real business justifications for the dress codes.

Even the NBA has a “business casual” dress code. When the players “are engaged in team or league business,” they are not allowed to wear sunglasses or headphones while indoors, and chains or medallions may not be worn over clothing.

Bottom Line: In general, it’s best to be cautious, especially in your first few days at a new organization. For all you know, the company might take an ultra laid-back position on this stuff. These companies do exist, even on Wall Street! However, until you get a grasp on the work culture environment, side on dressing conservatively. In other words, it’s better to take out those fourth and fifth piercings and leave the bangles for the weekend!

Part II: Cigarettes, Perfume and Smelliness

Continuing this week’s exploration of the dos and don’ts of office behavior, let’s move from what you wear into another important issue — how you smell. No, not whether you’re smelly from a lack of showering, but rather from your choice of perfume or lifestyle.

Can you be fired because your employer doesn’t like how you smell? Probably, assuming you are an at-will employee. As the saying goes, an employer can fire you because he doesn’t like the color of your shoes.

So, what kinds of smells are we talking about that could potentially get you canned for your scent? One example: smelling of cigarette smoke. Suzanne Lidster, a female school employee in Houston, Texas was dismissed from work (though not technically fired, as of yet) earlier this month because of the way she smelled. She claims to have learned the news via a cell phone message from the school’s principal. The alleged stench exacerbated a student’s allergies. Lidster, the principal said, was “not a good fit.” Though Lidster claimed that she would never knowingly harm a child, she admitted to being a smoker for 32 years. That situation certainly stinks — is there anything she can do?

Ms. Lidster could allege employment discrimination, perhaps under the American Disabilities Act, but her rights will have to be balanced against the rights of the children — namely, their right to their health. The school could have warned her, but they had no duty to do so, as Texas follows the general rule that employment is "at will," and may be terminated by either party at any time, with or without notice.

My take on this smelly story is that the school should have given her a chance to 'clean up ' her act, not just left a message on her cell phone firing her. Her employment is “at will,” so they can fire her for any legal reason. Although she could arguably claim her smoking is a disability, that’s a tough sell. But still, the school should have given her the chance.

And here’s a story about perfume problems: In July 2007, Susan McBride, a Detroit Planning Department employee sued the city claiming that a co-worker’s fragrance distracted her from working and caused her to be sick. McBride, who claims to be extremely sensitive to perfumes, says that her work environment violates the Americans with Disabilities Act (ADA).

I know, you’re probably wondering how your choice of perfume can impact your employment — but when you wear strong scents you need to take the health of your co-workers into consideration.

Bottom Line: If not everyone can tolerate your toilet water at work, it may be time to switch!

Part III: Tattoos and Piercings

Let’s say you need a lawyer. Your friend recommends a local firm and you make an appointment. You get there. You sit down. After waiting 10 minutes, you’re escorted to the office of an available partner. He’s meticulously dressed in a blue navy suit. But once you sit down, you notice a dragon tattoo running down his neck and a giant stud running down his tongue. Sound weird?

Like the other topics we’ve discussed this week — clothing, jewelry and scents — employers often look askance on anyone sporting a colorful tattoos or body piercings. As we’ve discussed, if you’re an at-will employee, an employer can fire you at a moment’s notice without explanation. Yikes.

The Civil Rights Act of 1964 is supposed to protect you from discrimination on the basis of religion, sex, race, color or national origin. You might also look to the Americans with Disabilities Act, Equal Pay Act, Age Discrimination in Employment Act, Pregnancy Discrimination Act, Immigration Reform and Control Act, and the National Labor Relations Act. But none of these laws specifically address tattoos and body piercings.

Can someone with piercings and tattoos claim religious discrimination? Consider The Church of Body Modification, which describes its objective as bringing “our modified society to harmoniously return to its spiritual roots that have been forgotten.” So, if I’m a member, can I claim that my piercings and body art are part of my religion?

It’s happened. Edward Rangel, a server who practices an ancient Egyptian religion that requires him not to hide his tattoos or religious inscriptions, sued his employer Red Robin Gourmet Burgers (a national restaurant chain) for firing him because he wouldn’t cover up those tattoos. Believe it or not, Red Robin paid $150,000 to settle the case.

And what about a sexual discrimination claim? For instance, can a man make a sex discrimination claim on the grounds that he is not allowed to wear earrings whereas his female co-worker is allowed (and even encouraged) to wear those hoops? That would be a tough sell…consider the 1998 case Harper v. Blockbuster Entertainment, where Blockbuster’s dress code of requiring only male employees to cut their hair was upheld by the court.

And what of national origin discrimination? Or disability discrimination? Probably ridiculous, but you never know…

Part IV: Don’t Touch Me!

“There’s a guy at work who hasn’t touched me (yet), but I’m scared that he will. He keeps coming on to me and putting me in uncomfortable situations. I’ve been thinking of reporting this, but does this stuff constitute battery? What are my rights in the situation?” — Maryann

First of all, if you feel that you’re being sexually harassed, you should absolutely report this to your manager at work, or to the appropriate person in human resources.

But does this guy’s behavior count as battery? Based on what Maryann has told me, probably not. What she’s described sounds more like assault. Battery and assault are covered in both tort (i.e. personal injury) law and criminal law. Let’s talk about both.

For battery to occur, there needs to be a physical contact that was actual, intentional, non-consensual and, in some way, harmful or offensive. (If the contact was not intentional, then it’s probably negligence.)

But in order for the action to qualify as assault, the guy only needs to place you in apprehension of being touched. In other words, assault is a threat, not a hit. But the concepts aren’t mutually exclusive. If there is unwanted physical contact, you may be able to claim both battery and assault if you were also threatened with contact.

You may also be wondering when it would be legally permissible to defend yourself, if necessary. The law varies from state to state, but generally you need to reasonably believe that self-defense is necessary based on the circumstances and that your actions are appropriate and warranted.

Bottom Line: If this guy has in fact committed assault, Maryann may be able to get a restraining order against him to prevent any possibility of battery. If necessary, consult the police about that. I can’t stress that highly enough! Be smart. Be safe.

Part V: Does This Job Make Me Look Fat?

Let’s conclude this week’s spotlight on appearance in the workplace with an issue that even those of us without nose-rings and tattoos can relate to — literally, our looks. We’ve considered how, as at-will employers, we’re at the mercy of being fired by our employers for any reason. But if think you’ve been unfairly discriminated against, you need to check whether any federal or state statute protects you.

The statistics (and wallets) don’t lie. A study in the American Economic Review demonstrated that “lookism,” exerts a powerful force on the labor market, so that for both men and women “wages of people with below average looks are lower than those of average looking workers — and there is a premium in wages for good looking people. The wage differential between attractive and ugly people is about 10 percent for both sexes.”

Meet Annette McConnell: a successful, award-winning employee at an Arizona company, who also happens to weigh 300 pounds. “I was told by my manager that they were going to lay me off because people don’t like buying from fat people.” Now, if I told you that a supervisor instructed an employee to leave because “people don’t like buying from Asians” or “people don’t like buying from pregnant women” it would be a no-brainer discrimination suit.

One state representative decided its time to combat this type of lookism discrimination. The “short and fat” bill (as dubbed by the media), sponsored by Massachusetts Representative Byron Rushing applies primarily to the workforce but also covers landlords and real estate transactions.

Discrimination based on appearance, at least regarding weight isn’t going away anytime soon. Federal government statistics show that United States obesity rates are at an all-time high with nearly one third of adult Americans considered obese … even at a time when we all seem so health conscious.

Rep. Rushing says it’s a question of civil rights. “This is one of the last physical aspects of people that you can acceptably laugh at,” remarks Rushing, who incidentally is black, slender and of average height. “You can be a shock jock on the radio and talk about fat people for a solid week and no one would ever think of having you lose your job. It’s still acceptable.” Not to my mind it isn’t!


Legislation would expand law to protect short fat people
Fat chance: It's not easy for obese workers
Beyond Measure: Short Stature and Inner Growth
The Logic of American Antidiscrimination Law
City of Santa Cruz prohibition against Discrimination Chapter
Dress Code Issues & Policies
Dress Code for the new millenium
Detroit employee sues city over co-worker's perfume
Odor of Cigarette Smoke Causes School Employee to Lose Job
Employee Fired for Religious Tattoos Receives $150,000
Employment Discrimination
Tattooed? Can't be trooper
Tattoos and the workplace
What are the Differences Between Assault and Battery?
Battery (tort)
RB, The Tyranny of Beauty, 197 , Oct. 12, 1987. Richard C. Paddock, California Album; Santa Cruz Grants Anti-Bias Protection to the Ugly, Editorial, Santa Cruz’ Weirdocracy, Jan. 21, 1992, at F2


The information contained in this Web site feature entitled “LIS ON LAW,” is provided as a service to visitors of, and does not constitute legal advice or establish an attorney client relationship. FOX NEWS NETWORK, LLC makes no claims, promises or guarantees about the accuracy, completeness, or adequacy of the information contained in or linked to this web site feature and its associated sites. Nothing provided herein should be used as a substitute for the advice of your own counsel.

Lis Wiehl joined FOX News Channel as a legal analyst in October 2001. To read the rest of Lis's bio, click here.