Can an employer get away with firing someone for having facial hair?
Christopher Hanson, a 38-year-old single father who lives in Albany, doesn't have one of those scraggly, runaway beards that one might associate with jam bands or train hopping. He keeps his goatee neat and trimmed, sometimes using scissors to clip back the mustache. Yet Hanson says he got fired last month because his facial hair was deemed a violation of his company's employee appearance policy. Now, he's fighting back.
Hanson worked as an audio-video technician for Swank Audio Visuals, a company that does conferences and events at major hotels throughout the Bay Area, including the Westin St. Francis, the Claremont, and the Four Seasons. On the day he was fired, he was on his hands and knees taping down a power cord for an event that was about to start at the Claremont when his supervisor asked to have a word with him. Having spoken with his boss about the beard situation before, he got a funny feeling.
"I just knew what he was going to say," Hanson recalled. "I thought: are these guys really going to push this, this far?"
For Hanson, having a beard is not a matter of personal expression; nor is it related to religious reasons. He has psoriasis, which prevents him from being able to shave. About a week before he was let go, his dermatologist sent a note to Swank's human resources department explaining that although he was undergoing treatment, she had counseled him never to shave his beard. It could exacerbate the disease, she explained. Shaving the affected area could cause pain, redness, and irritation on a daily basis, as well as unsightly rash. The doctor urged Swank to grant a medical exception for Hanson.
Hanson says he reminded his boss, Ken Reinaas, and Reinaas' boss, Todd Liedahl, about that letter when he was approached for their final conversation about the beard. "I said, 'I have a medical condition," Hanson recalled. But he says the response he got was, "I'm sorry, but that's the way it is." Hanson says he didn't yell or let himself become agitated. "I just kind of stood there and tried to keep a calm and humble mannerism," he said.
About a week later, Swank's human resources department issued a letter at Hanson's request explaining why he'd been fired. It stated: "The reason for [sic] end of your employment is due to the fact that we are unable to accommodate your medical request not to shave because this is a standard of our company appearance policy." Swank did not return multiple Guardian requests for comment.
The job, which had a strict dress code requiring AV techs to wear ties and shirts with collars, paid around $15 an hour. With a teenage daughter to support, Hanson needed every cent to make ends meet. He also had taken on substantial debt to finance an education at Ex'pression College for Digital Arts — a for-profit school in Emeryville with a tuition rate of $11,200 per semester for full-time students — and he needed to be able to pay back the student loans.
Hanson began to suspect that his former employer might have broken the law, so he sought legal representation. According to a complaint filed May 12 on Hanson's behalf by attorney Albert G. Stoll Jr., the Claremont Hotel — which houses the Swank office where Hanson was based — has no employee restrictions against facial hair. "The manager of hotel banquets had a goatee; one of the hotel banquet employees had a goatee; another hotel banquet employee had a mustache; and at least two other employees had facial hair," the lawsuit points out.
However, Swank employees were barred from having facial hair because company policy was pegged to the most conservative hotel employee appearance policy in the region, Hanson said.
In the case of the Bay Area, that hotel is the Four Seasons. Before being hired as a full-time AV tech based in Berkeley, Hanson took on part-time gigs for Swank to set up for hotel events as far north as Sausalito and as far south as San Jose. He says that when he was first hired, nobody informed him of the no-beard policy — and he had sported the goatee at the time he was offered the job.
The first time he learned there was a problem was when he was called on to do a job at the Four Seasons in San Francisco. He completed the first job without incident, yet when he was asked to go back a second time, Reinaas told him he would have to shave. He said it was impossible to do that, so the job went to someone else.
When the Guardian phoned the San Francisco Four Seasons to find out just what its employee appearance policy was — and to ask whether exceptions are granted for individuals who cannot shave due to medical or religious reasons — assistant director of human resources Jason Brown said he could not comment.
Months later, after Hanson had been hired as a full-time staff member based at the Claremont, Hanson says he was informed that Swank was ramping up enforcement of its no facial hair policy. He was told he'd have to comply even though he was willing to opt out of work at the Four Seasons. He asked his dermatologist to send the letter urging the company to grant an exception, and shortly after, he was fired.
The lawsuit charges that it was illegal for Swank to fire Hanson because the Fair Employment and Housing Act forbids employers from discharging an employee for designated reasons, including disability. Since Hanson's psoriasis is a disability, the argument goes, his termination constitutes a form of illegal discrimination.
However, not all medical conditions are considered disabilities in the court of law. Under state law, a disability is considered a serious medical condition that limits a major life activity. If Hanson is successful in proving that psoriasis constitutes a disability, Swank could be ordered to make a reasonable accommodation — such as retaining him as an AV tech while allowing him to opt out of work at the Four Seasons. Hanson's lawyer Tim Phillips describes this case as being "on the cutting edge of discrimination law."
There have been similar face-offs over appearance policies in the past, but none that fit Hanson's circumstance exactly — and, ironically, it seems that he might have an easier time arguing his case in court if he is unable to shave for religious reasons, or if he belongs to a racial minority that is disproportionately affected by a particular medical condition.
Not all cases brought against employers with similar policies in the past have been successful. In 1984, a Sikh machinist working for Chevron refused to shave his beard, in violation of a company policy, and wound up getting demoted to a lower-paid job as a janitor. Chevron's no-beard rule was created to ensure that employees had a gas-tight seal on respirators worn to protect against exposure to toxic gases, but the machinist could not shave for religious reasons. The Sikh man sued Chevron and lost.
In 1999, Sunni Muslim police officers in Newark sued when they were required to shave their beards to comply with an officer appearance policy, and the court ordered the police department to create an exception for those who couldn't shave for religious reasons.
Meanwhile, a spate of cases have been brought against no-beard policies at fire departments around the country by African American men suffering from a common skin condition called pseudofolliculitis barbae. The condition, which disproportionately affects African Americans, leaves pimply bumps on the beard area after shaving and can cause scarring over time — and the 100 percent effective cure is to refrain from shaving. No-beard policies in fire departments are borne out of the need for firefighters to wear respirators when battling infernos. While the results of those cases varied from city to city, some plaintiffs were able to show that the policies were a form of racial discrimination because they had a disparate impact on African Americans.
Meanwhile, staff attorney Linda Lye of the American Civil Liberties Union (ACLU) of Northern California was willing to weigh in. There are no laws banning no-beard policies on the state or federal level, Lye said, yet courts have ordered employers to make exceptions for religious reasons and to prevent racial discrimination in the case of the black firefighters. She added that certain municipalities such as Santa Cruz have enacted employment laws that prevent discrimination in appearance policies. In general, Lye noted, the ACLU is "troubled whenever employees are penalized because of medical conditions, race, sexual orientation, or other similar factors."