Privacy Issues in the Workplace

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. 613 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.” 614 “Transgender or gender non- conforming employees may not be held to any different standard of dress or grooming than any other employee.” 615 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 616 , 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. According to the court, a reasonable accommodation would allow wearing of a beard and required frequent tests of a firefighter’s safety mask. 617 Education Code section 35183 provides that a school district governing board may adopt reasonable dress code regulations prohibiting students from wearing gang-related apparel if deemed necessary for health and safety purposes. 5. R ESIDENCY R ESTRICTIONS An employer has limited authority to regulate/restrict where its employees reside pursuant to Article XI, Section 10, Subdivision (b) of the California Constitution which provides that while a local agency may not require that employees be residents of the city or county, it may require employees to reside within a reasonable distance of their place of employment.

International Ass’n of Fire Fighters Local 55 v. City of San Leandro 618 An appellate court held that a city requirement that fire department personnel reside within 40 miles from a fire station was not so unreasonable as to be constitutionally defective, even though it did not provide for consideration of the firefighters’ individual travel time from their residences.

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