9th Circuit: Cosmetics cause of action OK'd


By Judith A. Moldover April 28, 2006

An employer’s dress and grooming policy that has different requirements for men and women may be challenged because the requirements for one sex are based on stereotypes, as well as because the requirements for one sex are more burdensome than those for the other, according to the 9th U.S. Circuit Court of Appeals. It held that a female bartender who quit rather than wear makeup as required by her employer stated a valid gender discrimination claim on both legal theories, although the district court properly dismissed her case for lack of evidence. The 9th Circuit had initially held that the concept of sex stereotyping should not be extended to claims about appearance, then reversed its position after a rehearing by the full appeals court.

Darlene Jespersen had been employed as a bartender at the Harrah’s casino in Reno, Nev., for 20 years. An outstanding employee, she earned consistently high ratings both in performance evaluations by her supervisors and in customer surveys. Her problems began when Harrah’s embarked on its “Beverage Department Image Transformation,” which included a detailed dress and grooming code.

All employees had to look “well groomed, appealing to the eye.” Both male and female employees were required to wear the same uniform (black pants, white shirt, black vest and bow tie); both could wear tasteful jewelry but not outlandish hairstyles. However, there were additional, separate requirements for each gender. Men had to keep their hair short and their fingernails trimmed, and were specifically not allowed to wear makeup.

The requirements for women were more extensive with respect to hair (teased, curled or styled), stockings and fingernails. But the last straw for Jespersen was that female employees were required to wear face powder, blush, mascara and lipstick. Because her past experiences with makeup had left her feeling “demeaned” and “degraded,” Jespersen refused to wear it and lost her job.

After obtaining a right-to-sue notice from the EEOC, Jespersen filed a sex discrimination lawsuit, claiming that the makeup policy was discriminatory because, first, women were subjected to terms and conditions of employment to which men were not subjected, and second, women were required to conform to sex-based stereotypes.

The district court granted Harrah’s motion for summary judgment because the rules imposed different but equal burdens (men had to keep their hair short, women had to wear makeup), and because precedent in the 9th Circuit precluded extending sex stereotyping claims to dress and grooming codes.

On appeal, the 9th Circuit initially affirmed the district court’s decision. Likewise refusing to evaluate the makeup requirement separately, the court stated that Jespersen had produced no evidence that the entire grooming code imposed greater burdens on female bartenders than on male bartenders. It agreed that sex stereotyping was not applicable to grooming cases.

After granting review by the full appeals court, the 9th Circuit reversed itself and held that dress and grooming policies could be challenged for sex stereotyping, for instance, if a dress requirement treated women as sex objects. Nevertheless, it once again affirmed the district court’s dismissal of Jespersen’s case, because she had not provided any evidence that the policy was motivated by sex stereotyping. Observing that the overall image was the same for men and women, the court held that one individual’s personal reaction to one part of a mostly gender-neutral policy cannot form the basis for a sex stereotyping claim.

Jespersen v. Harrah’s Operating Co., 9th Cir., No. 03-15045 (April 14, 2006).

Professional Pointer: Harrah’s won because the overall policy, including the unisex dress code, was meant to create a well-groomed, professional image, and because the employee had submitted no evidence to support her claims. However, in the 9th Circuit, grooming policies are now subject to claims of stereotyping. To avoid the risk of large legal fees, not to mention losing outstanding employees, employers should adopt flexible grooming policies that can be enforced without resort to termination of employment.

Judith A. Moldover is an attorney in the New York office of Ford & Harrison.

Editor’s Note: This article should not be construed as legal advice.


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