Ninth Circuit Court of Appeals Finds that Policy Requiring Female Employees to Wear Makeup is NOT Discriminatory Under Title VII

Volume 3, Issue 18
December 30, 2004

On December 28, 2004, the Ninth Circuit Court of Appeals ruled that Harrah's "Beverage Department Image Transformation" program's appearance standards, which included a requirement that certain female employees wear makeup, did not constitute sex discrimination under Title VII of the Civil Rights Act of 1964, as the appearance standards imposed equal burdens on both sexes. The case was brought by a former female bartender, Darlene Jespersen, who refused to wear makeup as required by the appearance standards because it made her feel "degraded, exposed and violated." Jespersen also felt that the appearance standards "forced her to be feminine" and "dolled up."

Harrah's Beverage Department Image Transformation program was implemented at twenty Harrah's locations in February 2000 with the goal of creating a "brand standard of excellence." The program imposed specific appearance standards on employees in guest services, including heightened requirements for beverage servers. In addition to general appearance standards applicable to both sexes, there were gender-specific standards for males and females. For females, this included the use of makeup, whereas males were prohibited from wearing makeup. After Jespersen failed to wear makeup or apply for a transfer to a position that did not require makeup, she was terminated.

The district court granted summary judgment in Harrah's favor finding that the appearance standards did not discriminate based on immutable characteristics associated with sex and imposed equal burdens on both males and females. Concurring with the district court, the Ninth Circuit Court discussed its prior decisions in which it held that gender specific grooming and appearance standards do not discriminate on the basis of sex, unless more stringent standards are imposed on one sex than the other.

In weighing the time and cost necessary for employees of each sex to comply with the appearance policy, the Ninth Circuit Court agreed with Harrah's that the burden of complying with gender specific requirements must be evaluated by comparing the overall burdens imposed on one sex against the distinct requirements imposed on workers of the other sex. The Court thus rejected Jespersen's contention that the only meaningful comparison is between the make-up requirement for females and the no make-up requirement for males. The Ninth Circuit Court found that there was no evidence in the record to substantiate Jespersen's contention that the appearance policy imposed unequal burdens on females.

Of equal, and possibly greater importance, the Ninth Circuit Court refused to apply the U.S. Supreme Court's 1989 decision in Price Waterhouse v. Hopkins concerning sexual harassment of an employee based on her failure to conform to a commonly-accepted gender stereotype to employer policies imposing sex-differentiated appearance standards on male and female employees. The Court found gender-stereotyping sexual harassment to be distinct from gender-specific appearance standards and observed that Jespersen presented no evidence that she was harassed as a result of Harrah's appearance standards.

This decision is a welcome year-end win for employers. It clarifies an employer's ability to have gender-specific appearance standards provided that the burdens on males and females are equal. This decision also settles the issue of whether, in the absence of any alleged harassment, such policies constitute unlawful sexual stereotyping. However, the decision falls well short of allowing employers to "sex up" their operations by imposing onerous requirements on just females or female dominated job classifications.

For a good review of the legal issues related to appearance standards, please go to the Library section of our website and see the article written by Gregory J. Kamer and Edwin A. Keller, Jr. entitled Give Me $5 Chips, a Jack and Coke - Hold the Cleavage: A Look at Employee Appearance Issues in the Gaming Industry (Gaming Law Review, 2003).

Jespersen v. Harrah's Operating Co., Inc., No. 03-15045 (Dec. 28, 2004)

KZA Employer Report articles are for general information only; they are not intended and should not be construed to be legal advice. Reading or replying to such articles does not establish an attorney-client relationship. In addition, because the subject matters and applicable laws discussed in Employer Report articles are often in a state of change and not always applicable to every type of business entity or organization, readers should consult with counsel before making decisions based on the same.