Harrah's Policy Requiring Women to Wear Makeup Upheld by Federal Appeals Court

Dress and grooming policies continue to command the attention of employers and courts. In the most recent attention-grabbing decision, Jespersen v. Harrah's Operating Company, Inc., the Ninth Circuit Court of Appeal found Harrah's "Personal Best" policy, which requires women (and forbids men) to wear makeup, did not constitute sex discrimination under federal law. The case was decided by a slim 2-1 vote among a three-member panel of judges.

The case was closely monitored by employer and employee advocates. Numerous associations and advocacy groups also filed "friend of the court" briefs in support of their competing positions, including The Council for Employment Law Equity, The American Hotel & Lodging Association, The California Hotel & Lodging Association, The National Employment Lawyers Association, The Alliance for Workers' Rights, The Legal Aid Society—Employment Law Center, The American Civil Liberties Union of Nevada, The Northwest Women's Law Center, The California Women's Law Center, and The Gender Public Advocacy Coalition.

Upon learning of the adverse appellate decision, Jespersen and her attorneys promised to appeal. Jespersen's attorneys also recently filed a petition for rehearing before the entire Ninth Circuit panel. The Court has not yet issued a response to the petition.

The Undisputed Facts of the Case

Darlene Jespersen worked as a bartender at the sports bar in Harrah's Casino in Reno, Nevada for nearly 20 years. She was an outstanding employee. During her employment, Jespersen initially wore makeup, but stopped after a few weeks because it was "so harmful to her dignity and effectiveness behind the bar that she could no longer do her job." Harrah's initially did not object to Jespersen's choice not to wear makeup, and she continued to work at the sports bar and to receive positive performance reviews.

In 2000, however, Harrah's implemented new dress and grooming standards for employees at 20 locations, including the casino in Reno where Jespersen worked. Harrah's called the new standards the "Personal Best" program. At that time, the new standards did not require women to wear makeup, and prohibited men from wearing makeup. Jespersen acknowledged receipt of the policy containing the new standards and committed to adhere to the standards.

Shortly thereafter, the "Personal Best" standards were amended to require that all female beverage servers (including beverage bartenders) wear makeup. Male beverage servers continued to be prohibited from wearing makeup. Jespersen refused to comply with the amended policy.

Harrah's told Jespersen the makeup requirement was mandatory for female beverage servers, and provided her 30 days to apply for a position that did not require makeup. After 30 days, Jespersen had not applied for another position and the company therefore terminated her. Jespersen filed suit in the United States District Court of Nevada alleging Harrah's makeup requirement for female beverage servers constituted disparate treatment sex discrimination in violation of Title VII.

The District Court Agreed with Harrah's Position

After completing the initial discovery in the case, Harrah's moved for summary judgment and requested the court dismiss the case. The district court agreed with Harrah's position, and ruled the "Personal Best" policy did not violate Title VII because: (1) the policy did not discriminate against Jespersen on the basis of "immutable characteristics" associated with her sex; and (2) the policy imposed equal burdens on both sexes.

Jespersen disagreed with the district court's ruling, and appealed the decision to the Ninth Circuit Court of Appeal.

The Appellate Court Upheld Harrah's Policy

In reviewing the district court's decision, the Ninth Circuit summarized the "Personal Best" policy as "requiring women to wear makeup, while men are prohibited form doing so." Under the policy, women also are required to wear their hair "teased, curled or styled" each day, and men are required to maintain "short" haircuts. The Ninth Circuit summarized the legal issue on appeal as whether these standards are based on a policy which on its face applies less favorably to one gender than the other.

Bound by a prior appellate court decision, the Ninth Circuit applied the so-called "unequal burdens" test to the gender-differentiated dress and grooming requirements. In evaluating the relative burdens under the policy, the Court explained one must weigh the cost and the time necessary for employees of each sex to comply with the policy.

Harrah's contended the burden of the makeup requirement must be evaluated with reference to all of the requirements of the policy, including those that burden men only, such as the requirement men maintain short haircuts and neatly trimmed nails. Jespersen, on the other hand, contended the only meaningful appearance standard against which the makeup requirement could be measured was the corresponding "non-makeup" requirement for men.

The Ninth Circuit agreed with Harrah's approach and explained that because "employers are permitted to apply different appearance standards to each sex so long as those standards are equal," the unequal burden test "must sometimes involve weighing the relative burdens particular requirements impose on workers of one sex against the distinct requirements imposed on workers of the other sex."

The Ninth Circuit also found no evidence existed to support Jespersen's contention the makeup requirement imposed "innumerable tangible burdens" on women that men do not share. Jespersen argued unconvincingly that cosmetics cost hundreds of dollars per year and makeup requires a significant investment in time.

In upholding the district court's ruling in favor of Harrah's, the Ninth Circuit held Jespersen failed to introduce evidence raising a single disputed fact as to whether Harrah's "Personal Best" policy imposed unequal burdens on male and female employees.

One Dissenting Judge Disagreed

In the 2-1 decision, the dissenting justice explained Jespersen easily satisfied her burden that Harrah's policy imposed unequal burdens on men and women. The judge also argued a reasonable jury could determine Harrah's acted "because of Jespersen's sex" under two different theories.

First, Harrah's fired Jespersen because of her failure to conform to sex stereotypes, which is discrimination based on sex and impermissible under Title VII. Second, Jespersen created a disputed fact as to whether the policy imposed unequal burdens on men and women because the policy imposed a requirement on women that was not only time-consuming and expensive, but also burdensome in its requirement that women conform to outdated and impermissible sex stereotypes.

The other two justices on the panel, however, did not agree with either of these arguments.

Recommendations for Employers

This case demonstrates the obstacles and burdens employers face in attempting to adopt and administer dress and grooming policies. Because the "unequal burdens" test necessarily is fact dependent, employers are also likely to achieve mixed results in litigation.

As a result, employers should carefully review all dress and grooming policies and practices to protect against potential claims of not only sex discrimination, but also claims of discrimination based on other protected categories, such as race, religion and national origin. Employers should closely examine not only the express language and intent of the policies, but also the actual impact and burden the policies have on individual employees and specific groups of employees. Employers also should objectively examine the actual business purpose for such policies and the legitimate job requirements of the positions.

Finally, employers also should consult experienced employment counsel when drafting, reviewing and administering such policies. As Harrah's has learned, the cost of defense in cases challenging such policies can be significant.

Note: This article appears in the February 23, 2005 edition of the Daily Recorder.