Gender-Specific Appearance/ Grooming Standards Can Be Unlawful Discrimination.

Jespersen v. Harris Operating Co., Inc. (2006 9th Cir.) ___ F.3d ___.

In a 7- 4 decision, the federal Ninth Circuit Court of Appeals threw out a female bartender's Title VII sex discrimination claim arising out of her termination for refusal to wear make-up. However, the court emphasized that an appearance standard that creates an unequal burden for women (or men) could potentially give rise to a claim against the employer for sex discrimination based on unlawful gender stereotyping.

Harrah's Casino had a personal appearance policy that required female bartenders to wear make-up (specifically, face powder, blush, mascara, and lip color at all times), stockings, and nail polish, as well as to wear their hair down and "teased, curled, or styled everyday you work." Male bartenders were required to keep their hair short and were not allowed to wear make-up or nail polish. Harrah's fired Darlene Jespersen, who had worked at the casino as a bartender for more than 25 years, because she refused to wear make-up. Jespersen filed a lawsuit alleging that the casino's grooming policy constituted gender discrimination in violation of Title VII because: (1) it imposed an "unequal burden on women" and (2) it required female employees to conform to gender stereotypes as a condition of employment.

The District Court granted summary judgment to Harrah's on the grounds that the grooming policies imposed equal burdens on both men and women bartenders, and that the policy did not violate Title VII because it did not discriminate against Jespersen on the basis of the "immutable characteristics" of her sex. On appeal, a three-judge panel affirmed, but the panel did not agree with the District Court that grooming policies could never unlawfully discriminate as a matter of law. The Ninth Circuit then agreed to have the full panel of judges review the case.

The Court of Appeals' majority concluded that, in this case, plaintiff's claims were limited to the subjective reaction of a single employee who found the grooming policy in conflict with her own self image. With that said, the court stressed that sex stereotyping based on an employer's dress or appearance requirements may present viable claims of unlawful discrimination.

This decision provides some valuable guidance on what the courts will look at when evaluating whether a gender-based grooming policy is unlawful gender discrimination. The court noted that Harrah's grooming policy was aimed at creating a "professional," not sexual image, for both men and women. Notably, all of the bartenders were required to wear the same unisex uniform, and the uniform was not sexually provocative. With the exception of hair and cosmetics, most of the requirements of the appearance policy were the same for both men and women. The grooming standards did not require the plaintiff to conform to a stereotypical image that would objectively impede her ability to work as a bartender. The court also assessed whether the grooming policy created an unequal burden on women, and found that there was no evidence that the make-up and hair standards created a greater burden on the female bartenders than on the males. The court refused to take judicial notice of plaintiff's claim that it takes more time and money to apply make-up.

- Elisabeth A. Madden