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.

Jespersen filed suit in federal district court alleging the makeup requirement constituted disparate treatment sex discrimination in violation of Title VII. The district court granted judgment for Harrah's, holding the policy was lawful, and Jespersen appealed to the Ninth Circuit.

The court reviewed the Personal Best program to determine if its standards were discriminatory by requiring women to, but prohibiting men from, wearing makeup, and requiring women to wear their hair “teased, curled, or styled” each day while requiring men to maintain short haircuts. The court noted that previous decisions had held that grooming and appearance standards that apply differently to women and men do not constitute sex discrimination. The court found that when Congress passed Title VII it intended the law prohibit discrimination based only on “immutable characteristics” and did not apply to things that could be changed, such as grooming and dress standards. However, a sex-differentiated appearance standard that imposes unequal burdens on men and women is disparate treatment that must be justified as a bona fide occupational qualification. The court reasoned that employers may adopt different appearance standards for each sex so long as they do not impose a greater burden on one sex than the other.

The court also found that Jespersen failed to show that a makeup requirement for women imposed a burden in excess of that associated with normal good-grooming standards. The court saw no evidence in the record to support Jespersen's contention that women are burdened by the makeup requirement because cosmetics can cost hundreds of dollars per year and putting on makeup requires a significant investment in time. Further, Jespersen was unable to show that the actual impact of the burdens associated with the makeup requirement are greater than the burdens Harrah's places on male bartenders.

Full Ninth Circuit

The full Ninth Circuit will now address whether the panel's first application of “the 'unequal burdens' test to gender-differentiated dress and grooming requirements” was correct. The full circuit may also consider whether Jespersen's claim should have been analyzed under the so-called sex stereotyping theory of Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), as suggested by the dissent. Price Waterhouse held that taking an adverse employment action against an employee because of that employee's failure to conform to commonly accepted stereotypes is sex discrimination in violation of Title VII. If the full Ninth Circuit deems that Harrah's Personal Best policy placed an unequal burden on Jespersen or constituted impermissible sex stereotyping regardless of burden, the decision may have a broad effect on the service industry.

Appearance policy cases have likewise been heating up on the East Coast. Recently, male and female employees of the Borgata Hotel Casino & Spa in New Jersey challenged the Casino's maintain-your-weight-or-lose-it policy and random weigh-ins in a lawsuit in New Jersey state court, two complaints filed with the state civil rights division, and in a union grievance before the National Labor Relations Board. The cases raise direct challenges on multiple theories to whether personal appearance standards of any stripe that are based on customer preferences can be used by the Casino — which is known for the appearance of its servers — as part of a corporate branding campaign.

Cardelle Spangler and Kristine Zeabart are associates in the labor and employment relations department of Winston & Strawn LLP's Chicago offices. They concentrate their practice in labor and employment relations counseling and litigation matters.

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.

Jespersen filed suit in federal district court alleging the makeup requirement constituted disparate treatment sex discrimination in violation of Title VII. The district court granted judgment for Harrah's, holding the policy was lawful, and Jespersen appealed to the Ninth Circuit.

The court reviewed the Personal Best program to determine if its standards were discriminatory by requiring women to, but prohibiting men from, wearing makeup, and requiring women to wear their hair “teased, curled, or styled” each day while requiring men to maintain short haircuts. The court noted that previous decisions had held that grooming and appearance standards that apply differently to women and men do not constitute sex discrimination. The court found that when Congress passed Title VII it intended the law prohibit discrimination based only on “immutable characteristics” and did not apply to things that could be changed, such as grooming and dress standards. However, a sex-differentiated appearance standard that imposes unequal burdens on men and women is disparate treatment that must be justified as a bona fide occupational qualification. The court reasoned that employers may adopt different appearance standards for each sex so long as they do not impose a greater burden on one sex than the other.

The court also found that Jespersen failed to show that a makeup requirement for women imposed a burden in excess of that associated with normal good-grooming standards. The court saw no evidence in the record to support Jespersen's contention that women are burdened by the makeup requirement because cosmetics can cost hundreds of dollars per year and putting on makeup requires a significant investment in time. Further, Jespersen was unable to show that the actual impact of the burdens associated with the makeup requirement are greater than the burdens Harrah's places on male bartenders.

Full Ninth Circuit

The full Ninth Circuit will now address whether the panel's first application of “the 'unequal burdens' test to gender-differentiated dress and grooming requirements” was correct. The full circuit may also consider whether Jespersen's claim should have been analyzed under the so-called sex stereotyping theory of Price Waterhouse v. Hopkins , 490 U.S. 228 (1989), as suggested by the dissent. Price Waterhouse held that taking an adverse employment action against an employee because of that employee's failure to conform to commonly accepted stereotypes is sex discrimination in violation of Title VII. If the full Ninth Circuit deems that Harrah's Personal Best policy placed an unequal burden on Jespersen or constituted impermissible sex stereotyping regardless of burden, the decision may have a broad effect on the service industry.

Appearance policy cases have likewise been heating up on the East Coast. Recently, male and female employees of the Borgata Hotel Casino & Spa in New Jersey challenged the Casino's maintain-your-weight-or-lose-it policy and random weigh-ins in a lawsuit in New Jersey state court, two complaints filed with the state civil rights division, and in a union grievance before the National Labor Relations Board. The cases raise direct challenges on multiple theories to whether personal appearance standards of any stripe that are based on customer preferences can be used by the Casino — which is known for the appearance of its servers — as part of a corporate branding campaign.

Cardelle Spangler and Kristine Zeabart are associates in the labor and employment relations department of Winston & Strawn LLP's Chicago offices. They concentrate their practice in labor and employment relations counseling and litigation matters.