Labor Law Is Now Even More Confusing

Maddened by Makeup:
Gender-Based Appearance Policies, Such As Makeup Requirements, Have Some Employees Donning War Paint

As if we needed another issue to muddy the waters of labor law, workplace sexual harassment, or enlarge the gender wars in the workplace, now comes a case where the requirement to wear makeup while serving as a bartender at Harrah's...but only if you are a woman.

A few years back I worked at a campus that required men to wear a tie but did not require women to wear a tie. I hate wearing a tie and this policy was not explained to me until I was on the job for almost two months. So, I almost quit. The solution was to allow me to wear a western-style bolo in place of a tie. But I sure could have used this approach... and the women among the faculty would have loved taking the company to task over pantyhose.

Lipstick, mascara, face powder.

Of such things is litigation made.

Darlene Jespersen, a female bartender at Harrah's, who was discharged for refusing to wear makeup in accordance with her employer's dress and grooming policy, filed a Title VII sex discrimination lawsuit.

The 9th U.S. Circuit Court of Appeals initially affirmed the district court's rejection of her claims that the policy was more burdensome to women, as well as unlawful sex stereotyping. After en banc reconsideration, the 9th Circuit recently reversed itself and held that a dress and grooming policy based on sex stereotypes violates Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2002e et seq., although Jespersen failed to show that Harrah's policy was discriminatory, Jespersen v. Harrah's Operating Co., Inc., 444 F.3d 1104 (9th Cir. 2006).

The concept of sex stereotyping enlarges the scope of challenges to dress and grooming policies; such challenges have been raised by employees in every conceivable protected category. As our economy increasingly relies on customer-facing jobs in retail, hospitality and other service industries, employers need to know their rights to regulate employee appearance.

Recognizing that an employee's appearance affects customer perception of the employer, courts have long upheld an employer's "fundamental right" to regulate employee dress and grooming, Fagan v. Nat'l Cash Register Co., 481 F.2d 1115 (D.C. Cir. 1973). Some courts have noted an employer's right to demand that employees with customer contact be not only well-groomed, but attractive, Marks v. Nat'l. Communications Assn., Inc., 72 F.Supp.2d 322 (S.D.N.Y. 1999), although the Supreme Court of California has declined to decide whether requiring employees to be physically attractive is discriminatory, Yanowitz v. L'Oreal USA, Inc., 36 Cal.4th 1028 (Cal. 2005).

As a practical matter, however, employers with a specific idea of attractiveness may well end up discriminating against a particular racial or ethnic group or older employees and applicants. For instance, the sex discrimination claims of an ex-employee, whose manager had repeatedly stated that "sex sells" and dressed attractive young female employees in skimpy costumes, were dismissed, because plaintiff, an older woman, had not been required to wear the costumes; however, her age claims survived a summary judgment motion, Holopirek v. Kennedy and Coe, LLC, 303 F.Supp.2d 1223 (D. Kan. 2004).

A NEW TWIST

Sex-differentiated grooming policies started provoking litigation long before Jespersen. That an employer does not violate Title VII by requiring male employees to wear their hair short, even though female employees may wear their hair either long or short, is settled beyond dispute, Harper v. Blockbuster Entertainment Corp., 139 F.3d 1385 (11th Cir. 1998), cert. denied, 525 U.S. 1000 (1998). While wondering whether Title VII reaches such mutable characteristics as hair length at all, courts have consistently held that an employer may impose sex-differentiated dress and grooming requirements which reflect community standards, Willingham v. Macon Tel. Publ'g Co., 507 F.2d 1084 (5th Cir. 1975), as long as each sex is equally burdened, e.g., stricter weight limitations for female flight attendants than for male flight attendants violated Title VII, Frank v. United Airlines, Inc., 216 F.3d 845 (9th Cir. 2000), cert. denied, 532 U.S. 914 (2001).

Jespersen has given this string of cases a new twist. The facts are straightforward. A casino had maintained an informal dress and grooming policy for its beverage servers, but at some point decided it needed to adopt and strictly enforce a more formal policy.

Under the new policy, both men and women were required to wear a white shirt, black pants, black vest and black bow tie, with low-heeled black shoes. As for personal grooming, both men and women were required to be well-groomed and "appealing to the eye," i.e., attractive. Neither men nor women were allowed to wear "faddish" hairstyles.

However, there were additional requirements applicable separately to each sex. Men were required to keep their hair and fingernails short; men specifically could not wear makeup.

In contrast, there were several additional requirements for women. Women could wear their hair long or short, but either way, they were required to always wear their hair teased, curled or styled, and, if long, worn down. Nail polish had to be clear, red, pink or white. Jespersen did not contest these additional requirements. Her sole focus was on the following, which, for reasons not explained in any of the decisions, was adopted after the initial policy and subsequently abandoned: Women had to wear foundation or powder, mascara, blush and lipstick at all times.