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Legality of an 'Appearance' Policy
Employees and job applicants are increasingly filing claims of discrimination based on their appearance or image. The future scope of such claims may hinge on the outcome of a case currently pending in the U.S. Court of Appeals for the Ninth Circuit. Recently, the Ninth Circuit granted en banc review to a female bartender who was fired for refusing to wear makeup in compliance with her employer's grooming policy. Jespersen v. Harrah's Operating Co., No. 03-15045 (9th Cir.) (rehearing en banc granted May 13, 2005). The Ninth Circuit vacated the Dec. 28, 2004 decision by a divided three-judge panel. That panel affirmed the district court's summary judgment decision in favor of the employer and upheld a dress code that established analogous but different grooming standards for male and female employees. Jespersen v. Harrah's Operating Co., 392 F.3d 1076 (9th Cir. 2004). The panel's decision was its first application of “the 'unequal burdens' test to gender-differentiated dress and grooming requirements.”
The Case
Darlene Jespersen, the terminated employee, worked for nearly 20 years in a Harrah's Casino sports bar. Jespersen asserted that she didn't wear makeup because it “took away from [her] credibility” and interfered with her ability to be an effective bartender. In February 2000, Harrah's implemented a “beverage department image transformation” program to create a “brand standard of excellence.” The “Personal Best” program imposed specific appearance standards for employees in guest services positions. The program required all beverage servers of both sexes to be “well groomed, appealing to the eye, firm and body toned, and comfortable with maintaining this look while wearing the specified uniform.” In addition, female beverage servers were required to wear stockings and nail polish, and were required to wear their hair “teased, curled, or styled.” Male beverage servers were prohibited from wearing makeup or colored nail polish, and were required to maintain short haircuts and neatly trimmed fingernails. In March 2000, Jespersen acknowledged receipt of the Personal Best policy and committed to adhere to it. But shortly thereafter, the standards were amended to require female beverage service employees to wear makeup. The original standard prohibiting males from wearing makeup remained in effect. Jespersen refused to comply with the makeup rule and eventually was fired.
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