Last year, a three-judge panel of the Ninth Circuit Court of Appeals, which covers California, ruled in favor of an employer that was accused of sex discrimination for requiring female employees only to wear makeup on the job (see the Feb. 2005 issue of the California Employer Advisor). The Ninth Circuit subsequently agreed to have the full panel of judges review the opinion. Now, in a 7 to 4 decision, the appeals court has affirmed its original ruling, providing important guidance as to when gender-based appearance and grooming standards do–and don’t–run afoul of the law.
The case involved Darlene Jespersen, a bartender at Harrah’s Casino in Reno, Nevada. When Harrah’s implemented an appearance and grooming policy requiring female bartenders to wear makeup–and not permitting men to wear any–Jespersen refused to comply with the makeup requirement and she was fired. She turned around and sued for sex discrimination, arguing that the policy amounted to illegal sex stereotyping.
The Ninth Circuit has now ruled that appearance standards, including makeup requirements, can be the subject of a discrimination claim for sexual stereotyping, if the standards create an unequal burden for women (or men). In this case, however, Jespersen failed to present evidence that the Harrah’s policy imposed an unequal burden on women, so her case failed.
We’ll have full details in an upcoming issue of the California Employer Advisor.
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