May 1, 2006 Ninth Circuit Upholds Makeup/Grooming Policy

 

An employer’s grooming policy requiring female employees only to wear makeup was recently put to the test by the federal appellate court with jurisdiction over California. (Jespersen v. Harrah’s Operating Company, 9th Circuit Court of Appeals, April 14, 2006.) The employer operated a casino and required its bartenders, men and women, to wear the same uniform of black pants, a white shirt and comfortable black shoes, but differed its policy for male and female grooming standards. Women were required to wear makeup, while men were prohibited from doing so. Men were required to have their hair cut above the collar, while women could wear their hair long.

Based on the makeup policy, a female bartender’s employment was terminated when she refused to wear makeup. She felt makeup was demeaning, degrading and interfered with her ability to do her job. She sued the employer in federal court under Title VII of the Civil Rights Act of 1964, alleging the makeup policy discriminated against women on the basis of sex, and required women to conform to a sexual stereotype as a condition of employment. The court found in favor of the employer. It found the employee failed to produce evidence that the employer’s grooming standards placed an unequal burden on women. The employee did not supply any documentation to the court of the relative cost and time for men and women to comply with the makeup and hair standards. Instead, she relied on her subjective reaction to the makeup policy, and her record as an exemplary employee.

The court rejected the sex stereotyping claim on the basis that the employee was not singled out, or treated differently from other bartenders. The court remarked that to hold otherwise would allow every grooming, apparel or appearance policy that an individual employee found personally offensive to be possible sex discrimination. The court determined that the employer’s uniform and grooming policy was gender neutral, distinguishing cases in which the employer required female employees to wear sexually provocative clothing. The court concluded that the touchstone for reviewing grooming standards is reasonableness; a makeup requirement must be seen in the context of the overall policies imposed on employees in the workplace.

What this means

First, the easiest solution is to avoid having any grooming policy at all if possible. Second, if a grooming policy is necessary to your business, make sure it does not create a disproportionate burden on either gender. Finally, have any grooming policy reviewed by legal counsel to determine if it contains any discriminatory aspects or risks.

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This E-Update was authored by Fred Plevin and Martina Nagle. For more information, please contact Mr. Plevin, Ms. Nagle or any Paul, Plevin attorney at 619-237-5200.