By Jeff Johnson and Beth Nesis

Whoever said "Nothing is lasting but change" must have had the ski industry in mind. What started as a relatively simple process of getting people up a ski hill has evolved into a high-service mountain winter experience. Faced with the daunting task of filling your staff positions with qualified and presentable employees, you must now also consider the ramifications, legal and practical, of appearance and dress codes.

And if you think multiple pierced body parts are just a fad, think again. According to Brian Murphy of Gauntlet Inc., one of the largest piercing companies in the county, more than 500 piercing are performed each month at just one of the company's four stores. "The majority of these people are 18-35 year olds," said Murphy. Of course, it is exactly this age group upon whom the ski industry relies for its staffing needs.

As John Denault, Mammoth's Human Resources Director, says, "With the rise in snowboarders, more people with shaved heads, tatoos, and colored hair are seeking jobs." Given this trend, it is no wonder that ski areas around the country are recognizing the need for appearance standards. As the hiring season swings into full gear, you may ask: "Can I require employees, such as the purple-haired lift operator, to conform to an appearance code?"

The answer is yes and no. As a general rule, ski area operators can implement appearance standards for its employees provided these rules are driven by legitimate business considerations and aren't based on stereotypical notions of gender or racial roles. For example, ski areas have the discretionary authority to establish and enforce dress and appearance codes that are consistent with the public image they have chosen to pursue. As long as the standards are enforced in a non-discriminatory manner, without regard to gender, race, religion or other equal employment opportunity (EEO) category, they are permissible under state and federal anti-discrimination laws.

The real key to success, however, is the consistent enforcement of the rules. Managers enforcing these rules must be adequately trained. Without training, consistent enforcement is unlikely and the resort may be exposed to employee claims of discriminatory application of the rules. The following are frequently asked questions:

Can a ski area restrict the length of men's hair without imposing the same standard for women?

Yes. As a general rule, differing rules concerning the length and style of hair are permissible because hair isn't an immutable characteristic that tends to single out men or women. In addition, a general rule that all hair must be neat, washed, and without shocking colors or extreme styles (for example, mohawks, waist-length hair on men, purple, orange, pink, etc.) is a permissible standard.

Can beards be prohibited?

Yes. Like hairstyles, facial hair worn by individuals isn't an immutable characteristic and an employer may regulate facial hair under an even-handed grooming policy. Indeed, appearance standards are not the problem here -- the potential for trouble lies with enforcement. For example, if an employee forgets to shave, will that employee be disciplined for having one-day's growth? Will the resort refuse to hire an otherwise qualified applicant on account of a beard? These issues demonstrate the problem with blanket prohibitions. A less restrictive standard may be the better-reasoned approach. For instance, some areas allow beards, but require that they be neat and trimmed to a specific length.

Can a ski area require employees to cover their tatoos?

Yes. This is less likely an issue with golf or hotel employees than with ski employees due to clothing requirements. However, to avoid risking a claim of gender bias, men and women should be treated the same. Whatever the appearance standard for tatoos, it should be gender-blind.

Can a ski resort limit the number and kind of earrings or distinguish between men and women with respect to ear, nose, eyelid, tongue or any other type of rings?

Yes and No. Limits on number and kind of earrings are permissible. when differentiating between the sexes. Exercise caution in setting different standards for men and women with regard to nose, eyelid, tongue rings, etc. Such a distinction may be difficult to justify based on legitimate business reasons or even on "community standards" of appearance. A possible exception to the above is limiting the number of earrings that are worn by men and women differently.

Can a ski resort make distinctions between employees in ski area operations and those in hotel operations?

Answer: Yes. The key here is for the resort to set standards that are specific to the particular business undertaking in which the employee works and to enforce those standards without exhibiting an impermissible bias.

PRACTICAL TIPS:

• Be realistic -- An overly restrictive appearance policy may increase the difficulty in finding and keeping employees for the entire season.
• Consider acceptable "community standards" of appearance and grooming. What is considered normal within the community.
• Base standards on legitimate business reasons, not just personal preference or morals.
• Decide whether the same policy should apply to those employees who don't have contact with guests.
• Ask yourself whether the policy is fair and reasonable.
• Have a written policy, but keep the standards general - you can't anticipate every nuance.
• Give some discretion to supervisors, but not too much.
• Consult legal counsel before implementing the policy. Do-it-yourself standards are risky.
• Distribute the grooming standards to those affected.
• Inform applicants of the existence of appearance standards exist and that personal will be expected to comply or be subject to discipline/discharge for failure to do so.
• Enforce the standards fairly and consistently without regard to race, gender, age, ethnicity, religion, etc., but if an employee raises a bona fide religious or other concern, consider it carefully.
• Adequately train managers to enforce these rules.
• As you gear up for each season, consider whether an appearance standard is appropriate for your resort. If you already have a policy in place, make sure that it is not outdated and complies with state and federal employment discrimination laws. Most importantly, be realistic.

Jeff Johnson is a partner with the Denver-based law firm of Holland & Hart. He is head of the firm's Labor and Employment Practice Group. Beth Nesis was formerly the Director of Sales for Colorado Ski Country USA and an associate with Holland & Hart. Beth's practice focuses on employment law and commercial litigation.. Jeff can be reached at (303) 295-8000 and Beth can be reached at (303) 442-1615.