Can Female Employees Be Made To Make-Up...Their Faces?

The recent U.S. Ninth Circuit Court of Appeals decision in Jespersen v. Harrah's Operating Company, Inc. (Case No. 03-15045, April 14, 2006) addresses the sometimes murky issue of whether certain dress or grooming standards are discriminatory. Anyone who believes the case was a sweeping affirmation of an employer's ability to control the appearance of employees would be well advised to read the opinion and confirm that the primary reason why plaintiff's claim failed was a lack of evidence; evidence that may very well be submitted in another employee's case.

Harrah's had implemented "Personal Best" grooming and appearance standards for bartenders at various Harrah's locations, including its casino in Reno, where Plaintiff had been employed for 20 years. While that program required men and women to wear the same uniform (black pants, white shirt, black vest and a black bow-tie), it also contained sex-differentiated requirements pertaining to hair, nails and makeup. Men were prohibited from wearing ponytails, having hair that extended below the top of the shirt collar, were not allowed to use nail polish, were required to keep their nails neatly trimmed and were forbidden from wearing eye and facial makeup. Plaintiff only complained of the makeup requirement imposed on female employees, "(face powder, blush and mascara) must be worn and applied neatly in complimentary colors…" and "[l]ip color must be worn at all times…", though the program also required female employees to tease, curl or style their hair every day without wearing it up at any time.

Rather than finding that the makeup requirement did not violate Title VII, the Ninth Circuit found that Plaintiff did not present sufficient evidence that the makeup policy created a disparate impact on female employees because of the burden imposed upon them by the makeup application requirement. After recognizing that legitimate business reasons could constitute a basis for differential grooming requirements, the Court then held that Harrah's program did not "on its face place [ ] a greater burden on one gender than the other. Grooming standards that appropriately differentiate between the genders are not facially discriminatory." The majority's 7-3 decision then found that the Plaintiff simply failed to provide evidence that as applied, the makeup policy was more burdensome for women than men. The Court even denied Plaintiff's request to take judicial notice "of the fact that it costs more money and takes more time for a woman to comply with the makeup requirement than it takes for a man to comply with the requirement that he keep his hair short…."

The decision also found Plaintiff's alternate legal basis to be appropriate: "[i]f a grooming standard imposed on either sex amounts to impermissible stereotyping, something this record does not establish, a plaintiff of either sex may challenge that requirement under Price Waterhouse." As with its ruling on the burden issue, however, the Court found that there was no evidence in the appellate record that the personal dress policy was "adopted to make women bartenders conform to a commonly accepted stereotypical image of what women should wear."

The majority decision did provide some relief for employers as to how an allegedly stereotypical appearance standard is to be analyzed. The majority held that while the individual elements of Harrah's policy may support a stereotype claim, the requirements at issue "must be viewed in the context of the overall policy" in order to assess whether they support a Title VII claim. In finding for Harrah's on that issue, the court noted that Plaintiff's was not a case of sexual harassment or the situation in which the appearance requirements were intended to portray the female bartenders as sex objects.

The Jespersen decision cautions employers to carefully groom appearance standards to assure that any differences between obligations imposed upon women and men are based upon bona fide occupational issues. Makeup requirements found to be burdensome or inappropriately stereotypical will give rise to not only a Title VII claim, but a claim under FEHA, as well. Employers with any questions regarding these issues are cautioned to seek advice from legal counsel.