SPECIAL ALERT! — Ninth Circuit Court Issues Final Decision on Harrah’s Appearance Policy Requiring Certain Female Employees to Wear Makeup

Volume 5, Issue 3
April 18, 2006

On April 14, 2006, the Ninth Circuit Court of Appeals issued its final decision in the case of Jespersen v. Harrah's Operating Co., No. 03-15045, which challenged Harrah's discharge of a female bartender who refused to wear makeup as required by Harrah's appearance standards. The en banc(full) Court affirmed a prior decision by a Ninth Circuit Court panel which 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. Initially reported in the KZA Employer Report, Volume 3, Issue 18, this final decision provides clear guidance, but significant caution, to Nevada employers on this popular topic.

The case was brought by a former female bartender, Darlene Jespersen, who refused to wear makeup as required by the appearance standards because it "forced her to be feminine" and "dolled up." The Ninth Circuit Court ruled that sex-based differences in appearance standards alone, without any showing of disparate effects on one gender, do not violate Title VII. Thus, the Court reaffirmed employers' rights to differentiate between the genders in drafting and applying appearance and grooming standards and explained that the issue, for Title VII's purposes, is whether the policy imposes an unequal burden on one gender.

The majority of the Ninth Circuit Court Judges ruled that Jespersen had not proven an unequal burden was imposed on females inasmuch as she offered no evidence that the makeup requirement was more onerous than the requirements imposed upon the male employees. Three Judges disagreed, however, and explained, in their dissenting opinion, that they believed the entire policy was more onerous on women because in addition to the make up requirement, it required more of female employees in terms of time and cost. For example, rather than being required to simply present a short, neatly-trimmed hairstyle, female employees were required to curl and style their hair, and instead of simply presenting short, trimmed, and clean fingernails, female employees were required to present a certain length and color of fingernail.

Of greater concern, the Court also clarified the scope of the U.S. Supreme Court's 1989 decision inPrice Waterhouse v. Hopkins, which addressed discriminatory gender stereotypes, as it applies to appearance policies. The Court held that a grooming/appearance standard can be discriminatory if it amounts to impermissible stereotyping of female or male employees. In holding that Harrah's policy as a whole was not discriminatory, the Court implied that an appearance standard which was intended to be provocative or stereotype women as sex objects or subjected female employees to sexual harassment could be found unlawful under Title VII. Moreover, four Judges stated in dissenting opinions that they believed Harrah's makeup requirement constituted discriminatory sexual stereotyping because it accepted the "cultural assumption - and gender-based stereotype - that women's faces are incomplete, unattractive, or unprofessional without full makeup."

While all employers should welcome the Court's decision which reaffirmed and clarified that gender-specific appearance standards are lawful provided that the burdens on males and females are equal, the decision demonstrates that employers in the Ninth Circuit must continue to proceed with caution in adopting and applying certain types of appearance and grooming standards. Employers looking to "spruce up" their look with racy or sexy uniforms still face significant challenges from employees who can argue that such requirements are discriminatory because they subject the employees to sexual harassment and/or unlawfully stereotype male and/or female employees as sex objects. While it is not clear whether the Court would find unlawful a policy which imposed racy uniform requirements upon both men and women, it is clear that such a policy would be intensely scrutinized by the Court under the sexual stereotyping theory.

For a review of the legal issues related to appearance standards prior to this ruling by the Ninth Circuit Court, 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).

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.