Employment Law Daily Instagram-filtered hair color photo doesn’t show Caucasian treated more favorably under UPS grooming policy
Wednesday, January 31, 2018

Instagram-filtered hair color photo doesn’t show Caucasian treated more favorably under UPS grooming policy

By Joy P. Waltemath, J.D.

Granting summary judgment for UPS against an African-American customer service rep’s claim that she was fired as a result of race discrimination, not due to her repeated violation of grooming standards that prohibited “extreme” hair colors like fuschia and burgundy, a federal district court in Kansas found no evidence of pretext in her termination. Among its reasons: An Instagram photograph of a Caucasian coworker allegedly showing “virtually identical hair color” was not properly authenticated by the customer service rep (CSR), while UPS submitted the coworker’s affidavit that the photo didn’t accurately depict her hair color. Rather, she had used various Instagram filters on the photo before posting it and thus she was not a similarly situated comparator who was treated more favorably. Other record evidence demonstrated that UPS also enforced the personal grooming policies against Caucasians who had “extreme” hair colors (Ewing v. United Parcel Service, Inc., January 26, 2018, Lungstrum, J.).

Grooming policy violation. UPS Personal Appearance Guidelines stated that hairstyles and colors should be “worn in a businesslike manner” and extremes should be avoided, specifically mentioning prohibited hair colors “such as purple, pink, fuchsia, crimson and burgundy.” After the rep had worked for UPS for two years, she had “micro braid extensions”—”burgundy with blond highlights”—put into her hair. According to the CSR, the color was to match the “crimson” rinse she had always worn in her hair. The HR manager counseled the rep about her hair color and allowed her to retain the braids for “several weeks” in recognition of the expense the CSR had incurred in getting them.

It happens again. About a year later, the CSR got her hair done in anticipation of a wedding—a perm, a rinse, and hair extensions, which she said resulted in her hair being a “brighter burgundy,” but which the HR rep, also an African-American woman, characterized as “bright fuschia.” It was uncontroverted that the color was almost identical to the hair color that a Caucasian employee had been required to change a year earlier. Coworkers complained, and the HR manager believed the CSR’s hair was creating a distraction in the workplace and issued a final written warning. Knowing, however, that the CSR could not change the color immediately or the chemicals would cause her hair to fall out, HR granted the CSR additional time to change her hair color and asked her to wear a scarf or wig in the interim. The CSR said she was given until mid-June to change her hair color (almost six weeks). On June 16 she came to work without a scarf or a wig, and without having effectively removed the burgundy from her hair color. She was terminated as a result.

Pretext. The CSR’s theory of the case was that by terminating her for a hair color violation of the Personal Appearance Guidelines while not terminating Caucasians for similar violations, UPS discriminated on the basis of race. The case hinged on pretext since the repeated grooming policy violations and final warning were legitimate nondiscriminatory reasons for her termination.

Caucasian comparator? As to the CSR’s evidence of similarly situated Caucasians who she claimed were treated more favorably, she argued that a Caucasian coworker had hair the same color as hers, but she was retained and eventually promoted. She relied on a photograph that she said accurately depicted the coworker’s hair color while she was at UPS; however, the CSR could neither authenticate the photo nor lay a foundation for it during her deposition, and the coworker’s own affidavit said the photo’s color was altered by the coworker through the use of Instagram filters before she had posted it. She said her hair was never actually the “much brighter” color the Instagram photo represented. To the court, this meant that the CSR could not establish that the coworker was a similarly situated comparator.

Policy enforced against Caucasians, too. Instead, there was record evidence that UPS had enforced its personal grooming policy against Caucasian employees who had “extreme” hair colors, said the court. Two women (one with fuschia hair, the other with bright red hair) were told in the year preceding the CSR’s firing that their hair color was not in compliance with policy and told to change it; both did so within one week. After the CSR was terminated, two other Caucasian women were counseled about their hair color (one with purple hair, the other with bright red hair). Both changed their hair color within one week.

Subjective criteria. Finally, the CSR’s argument that UPS relied on “subjective criteria” concerning appropriate hair color got nowhere. Although the Personal Appearance guidelines could seem subjective (requiring that hair be worn “in a businesslike manner”), it was undisputed that UPS enforced the “hair color” guideline only as to extreme hair colors such as fuschia, purple, pink and crimson, which the court found were objective measures. Nor did the CSR dispute that when she was disciplined, her hair color had violated the grooming guidelines. And while not at all dispositive, the court did cite the fact that the two main individuals enforcing the guidelines (the HR manager and the operations manager) are African-American certainly undermined the CSR’s theory that UPS utilized subjective criteria to mask discrimination against African Americans. Accordingly, summary judgment was appropriate.

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