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Article Excerpt
I. INTRODUCTION
Most of the legal scholarship analyzing employers' discretion to impose appearance codes focuses on whether antidiscrimination law, particularly Title VII, limits that discretion. (1) Much less attention had been paid to the role that labor law and collective bargaining might play. (2) My intention here is to show how that body of law can offer employees important protection from employer overreaching. (3)
One way to begin is to compare the legal options available to 1) Darlene Jespersen when she objected to her employer's required appearance code, and 2) Renee Gaud and Trisha Hart--cocktail servers at the Borgata Hotel Casino and Spa in Atlantic City--when they objected to their employer's appearance code. Thanks in part to the work of Mitu Gulati, Devon Carbado, and Gowri Ramachandran, many of the elements of the Jespersen case are now well-known. (4) Darlene Jespersen, a bartender at Harrah's Casino in Reno, Nevada, challenged her employer's decision to enforce a policy that required female--but not male--employees to wear makeup and style their hair. In a lawsuit filed in federal court, she claimed that her discharge for failing to comply with that policy constituted illegal discrimination under Title VII. (5) The Ninth Circuit ultimately determined that Harrah's was entitled to summary judgment. (6) Less well-known is that Jespersen also filed suit against Harrah's in Nevada state court claiming that the discharge constituted a breach of an implied employment contract she had with Harrah's. In rejecting that claim, the Supreme Court of Nevada ruled that her allegations were not enough to overcome her status as an at-will employee whose discharge was not subject to a contract-based challenge. (7)
In contrast, Renee Gaud and Trisha Hart worked as cocktail servers at the Borgata Hotel Casino and Spa in Atlantic City, New Jersey. (8) Unlike Darlene Jespersen, they were union employees represented by the Hotel Employees and Restaurant Employees International Union, Local 54, and thus were not at-will workers. (9) Gaud, Hart, and other employees objected to a new Borgata policy prohibiting cocktail servers and bartenders from gaining more than seven percent of their body weight as determined by a baseline set when the policy was instituted. (10) Gaud and Hart challenged the policy in New Jersey state court on the grounds that it constituted unlawful discrimination against women under New Jersey law. (11) However, because Borgata cocktail servers and bartenders are represented by a union, they had another avenue available to challenge Borgata's policy. Their union filed grievances on their behalf claiming that certain aspects of Borgata's implementation of the policy violated the collective bargaining agreement between the parties. One grievance was settled, and the other was ultimately withdrawn. (12)
In this paper, I will first show why I assert that the statutory and contract protections available to union employees can be quite robust in the area of appearance codes, and sometimes more robust than the protections offered by other bodies of law, particularly antidiscrimination law. Second, I will respond to some critiques I anticipate of the suggestion that labor law has a significant role to play in protecting the freedom of employees to present the image they choose at work.
II. LABOR LAW, COLLECTIVE BARGAINING AGREEMENTS, AND APPEARANCE CODES
The National Labor Relations Act (NLRA), the primary statute governing union-management relations in the private sector, gives employees the right to "form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection." (13) Thus, covered employees may form a union without employer interference, and the employer is obligated to bargain in good faith with that union "with respect to wages, hours, and other terms and conditions of employment." (14) The National Labor Relations Board has held that appearance codes are "terms and conditions of employment" within the meaning of the NLRA and thus "mandatory subjects of bargaining." (15)
This has two important consequences. First, if a union seeks contract language restricting the employer's ability to impose certain appearance requirements, the employer must negotiate with the union to impasse before implementing an appearance code, (16) and the union may insist on its position in bargaining and use economic weapons, such as a strike, in support of its position.
Second, assuming a union and an employer have successfully executed a collective bargaining agreement, the employer may not modify any provision of that agreement involving a mandatory subject for the life of the contract without the union's consent or a waiver of the union's right to bargain over the issue. (17) For example, in Public Service Co., (18) the employer, a utility company, had a collective bargaining relationship for over fifty years with a union representing its electrical and water transmission, distribution, and production employees. (19) The most recent agreement provided specifically that union employees were not required to wear uniforms. (20) However, without bargaining with the union, the employer announced a new uniform policy that stated in part "[w]earing of approved uniform clothing items shall be mandatory as a condition of employment." (21) The Board found that the employer violated [section] 8(a)(5) of the NLRA (employer's refusal to bargain in good faith with a union) because it unilaterally changed the contract without bargaining, and nowhere in the contract had the union waived its right to bargain over the uniform issue. (22) The employer was ordered to rescind the uniform policy and bargain with the union in good faith before implementing such a requirement. (23)
The Board recently reaffirmed its position that appearance codes are mandatory subjects of bargaining in a case involving a hospital's unilateral decision to require all employees who provide hands-on health care to patients to (1) wear uniforms and (2) refrain from the use of acrylic and artificial nails. Nowhere in the collective bargaining agreement had the union waived the right to bargain over these changes. The Board concluded the employer had breached its duty to bargain when it imposed the uniform requirement. (24)
Finally, one of the least appreciated aspects of labor law is that the protections of the NLRA apply even to employees who are not members of unions. Section 7 gives "employees'--union or otherwise--the right to engage in "concerted activities for ... mutual aid or protection." The Supreme Court has interpreted the statute, for example, to protect from employer discipline non-union employees who engaged in a walk-out to protest cold temperatures in their workplace. (25) Thus, the NLRA provides protection to even non-union employees who take steps to persuade their employers not to exercise the "right" granted them under the background legal regime of at-will employment to enact appearance codes. For example, in American Arbitration Association (26), the employer, a provider of dispute resolution services, announced that clerical employees could no longer wear jeans...
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