Privacy Issues in the Workplace

of law, it is becoming ever more common for agencies to hire only non-smokers as firefighters, and to prohibit their smoking on and off-duty.

The Oklahoma City Fire Department implemented such a policy. The policy was attacked by an employee who had been fired after being caught smoking off-duty as unconstitutionally infringing his privacy, liberty and due process rights. The court upheld the policy and the City’s right to enforce it. 607 According to a decision by the California Public Employment Relations Board, a school district was not required to negotiate prior to implementing a policy that banned smoking in all District buildings and vehicles, and at District-sponsored activities, whether such activities occurred on or off District premises. The District had been motivated by several factors, including Education Code section 48901 which requires discouragement of high school students from smoking. 608 The ADA, and the California FEHA may prohibit an employer from refusing to hire smokers who are qualified to perform the essential functions of the job for which they apply. Although smoking, unlike rehabilitated illegal drug addiction, is not a protected disability enumerated in the ADA, it may nevertheless be covered if the employer regards it as a substantially limiting impairment or if the employer’s attitude renders it a substantially limiting impairment. 609 A non- smoking regulation could be subject to a credible legal challenge under the ADA, FEHA, and under California’s constitutional right to privacy. 4. G ROOMING S TANDARDS An employer can establish reasonable dress codes for its employees. To avoid violating the discrimination laws, however, the dress codes should be uniformly applied to men and women. This does not mean that they need to be identical; they must, however, impose an equal standard or burden. 610 According to the DFEH in guidance provided on Transgender Right in the Workplace, “unless an employer can demonstrate business necessity, each employee must be allowed to dress in accordance with their gender identity and gender expression.” 611 “Transgender or gender non- conforming employees may not be held to any different standard of dress or grooming than any other employee.” 612 A police department has been held to be able to establish hair grooming standards for male members of the police force. In Kelley v. Johnson 613 , the court held that a county’s hair grooming regulation for its police officers was not so irrational that it could be branded arbitrary and thus a deprivation of a policeman’s liberty interest in the freedom to choose his own hairstyle. Thus, a city may enact certain grooming standards if they have a rational connection to the organizational needs of the workforce, as well as the protection of persons and property. Nonetheless, a fire department ban on facial hair was determined to be discriminatory against persons with “folliculitis barbae,” or razor-bumps, a handicap. The department’s safety rationale, that facial hair could cause a mask to leak, was insufficient evidence of a safety risk.

Privacy Issues in the Workplace ©2019 (s) Liebert Cassidy Whitmore 173