Q: My 12 year old son has had long hair for several years. He’s been playing guitar since kindergarten and thinks his long blonde curls make him look like a rock star. His elementary teachers never said anything about it. He started college this year and we got a note last week saying he needed to cut his hair or stay home. The school says it has a dress code that requires boys to keep their hair no longer than the ears in front and to the sides, and “neatly groomed on the back, no longer than the nape.” My son is devastated. Girls don’t have to cut their hair and can wear it short or long, isn’t that a form of discrimination?
A: The general consensus of courts across the country is that a “grooming code… conforms to community standards” that sets different standards for men and women – or boys and girls – is not a violation. anti-discrimination laws.
There is a caveat to this general rule: the grooming code should be applied evenly and impose “comparable burdens on both males and females.”
The definitions of what constitutes a “comparable burden” are quite broad. In 2006, for example, the Ninth Federal Circuit upheld a grooming code as non-discriminatory that required women to wear their hair down and “be teased, curled or styled” and to wear full makeup – face powder. , blush, mascara and lipstick.
Because both men and women were subject to grooming standards (men were required to keep their hair short and were prohibited from having ponytails, makeup or nail polish), the court held – and because no evidence had been presented that the standards weighed one sex more than the other – that laws prohibiting discrimination had not been violated. The court refused to “take judicial notice” as makeup can be expensive and can take a long time to apply.
But where only one sex is subject to grooming standards, the result is different. The Seventh Circuit Court ruled in 2014 that a short hair requirement that applied only to members of boys’ basketball and baseball teams could constitute discrimination where there was no evidence that girls, whether or not they play sports, are subject to some kind of grooming. code at all. The court said it would have ruled differently if evidence of a grooming code for girls had been presented.
The Court noted that there is no constitutional right to wear long or short hair, depending on personal style preference. The Constitution, the Court noted, protects fundamental rights, those which are “deeply rooted in the history and tradition of this nation, and implicit in the concept of ordered liberty, so that neither liberty nor justice is would exist if they were sacrificed ”.
Hair styles did not make the constitutional cut.
That said, courts have sometimes found discrimination when the offending hairstyle is required by a person’s religion, such as dreadlocks for a Rastafarian, side curls for Hasidic Jews, or long hair in a turban for a Sikh. In such cases, a basic right – freedom of religion – may be involved and the worker or student accused of breaking the grooming code should be granted an exception.
Grooming or dress codes are common in most schools. Almost two-thirds of American schools followed a strict dress code, according to a report. Challenges to these codes, whether on grounds of sex discrimination, religious discrimination or, where words, images or symbols are involved, the First Amendment right to free speech is increasingly common. . Students challenge dress codes that prohibit ripped jeans, low-cut tops, T-shirts with slogans, or even challenge the idea of a dress code as inherently sexist, racist, and classist.
Although court challenges to school dress and dress codes are proliferating, there is no indication yet that the courts are willing to rule in favor of most of these challenges. While any grooming code that sets different standards for boys and girls is necessarily discriminatory, this is not, without more, illegal discrimination.
Before contacting a lawyer to sue the district, you may want to speak to the principal and see if an exception can be worked out.
Lawyer Daniel A. Gwinn’s Troy practice focuses on employment law, civil rights litigation, probate, trusts and estates. Contact him with your legal questions at [email protected] or visit gwinnlegal.com. “Ask the lawyer” is for information only and should not be taken as legal advice.