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Female Bartender Can Be Fired for Refusing to Wear MakeupTitle VII’s broad prohibition on discrimination “because of … sex” cannot be taken literally. Our society embraces numerous sex-based distinctions. Corporate appearance and grooming standards, for example, frequently impose different requirements on male and female employees. In a recent case, a divided Ninth Circuit panel held Harrah’s lawfully terminated a female bartender who refused to wear makeup as required under a “Beverage Department Image Transformation” policy implemented at twenty Harrah’s locations. A petition for rehearing before the Ninth Circuit is a virtual certainty, setting the stage for the eventual presentation of this important issue to the United States Supreme Court. 1/5/2005 Darlene Jespersen was a bartender at the sports bar at Harrah’s casino in Reno, Nevada, for nearly twenty years. Darlene’s performance was spectacular. She was consistently given glowing recommendations by numerous customers and Harrah’s supervisors. Darlene did not wear makeup. She tried it for a short period twenty years ago but obviously hated it. She testified wearing makeup (1) made her feel “sick, degraded, exposed and violated,” (2) “forced her to be feminine” and to become “dolled up” like a sexual object and (3) actually interfered with her ability to be an effective bartender because it “took away [her] credibility as an individual and a person” when dealing with unruly or intoxicated customers. Darlene’s dislike for makeup was not a problem when Harrah’s policy simply “encouraged” its female beverage servers to wear makeup. Everything changed in February 2000 when Harrah’s extensively revised its appearance standards policy. Both sexes could now only wear simple tasteful jewelry and had to avoid faddish hairstyles, unnatural colors, and ponytails. Male employees’ hair could not extend below the top of their shirt collars. Female employees’ hair “must be teased, curled or styled every [work] day” but its length was not limited. Male employees’ fingernails must be “neatly trimmed” and men could not wear colored nail polish. Female employees could wear colored nail polish but only “clear, white, pink or red” and must avoid “exotic nail art or length.” Female employees must wear stockings made of “nude or natural color consistent with…skin tone” and without runs. Both sexes’ shoes must be solid black leather or leather type with rubber (nonskid) soles. Darlene had no problems with this revised appearance standards policy. She did not mind the new requirements applicable only to female employees that stockings and nail polish must be worn. Darlene probably applauded the revised policy’s new requirement that male employees could not wear eye or facial makeup. Everything changed when Harrah’s amended its appearance standards policy to add a brand-new requirement that all female beverage servers (including female bartenders) wear makeup. This amendment went even further. Instead of simply stating that, unlike male employees who could not wear makeup, female beverage servers “must wear makeup,” the amendment went on to require that mascara, blush, and foundation “must be worn and applied neatly in complimentary colors” and that lipstick or lip color “must be worn at all times.” Darlene announced she would not wear makeup. After a few months, Harrah’s gave her the choice of complying or transferring to a position that did not require makeup, thereby limiting her potential damages. Darlene stood her ground and was fired in August 2000. While her case was pending, Harrah’s offered Darlene a personal exemption from its makeup requirement and reinstatement as a bartender. Darlene (now being aided by the ACLU and various rights groups as friends of the court) rejected that offer on the ground it did not include back pay and would not have exempted other women who also objected to wearing makeup. Many courts have held that grooming and appearance standards that apply differently to women and men do not constitute unlawful sex discrimination under Title VII. In a 1974 decision, for example, the Ninth Circuit itself held an employer’s rule prohibiting men, but not women, from having long hair (the same prohibition was in the February 2000 Harrah’s appearance policy) was entirely outside Title VII because hair length, unlike race, national origin, and color, was not an immutable characteristic and could easily be changed by the employee.[1] A 1977 Ninth Circuit decision similarly held that requiring men but not women to wear neckties was permissible under Title VII.[2] In this case, District Judge Edward Reed granted Harrah’s summary judgment, holding the Harrah’s appearance standards did not constitute sex discrimination because, viewed as a whole, they imposed equal burdens on both sexes. Darlene argued the court should look only at the makeup requirement (yes for women, no for men). Harrah’s argued the court should evaluate the single requirement that Darlene objected to (the makeup rule) in the context of all of the policy’s requirements, including those that only burden men. The Ninth Circuit panel majority (Judges Silverman and Tashima) agreed with Harrah’s. Employers can obviously apply different appearance standards to each sex. Therefore, a court must “weigh the relative burdens that particular requirements impose on workers of one sex against the distinct requirements imposed on workers of the other sex.” Additionally, in a significant footnote four, the panel majority set the bar even higher, noting that “only that burden which is imposed beyond the requirements of generally accepted good grooming standards” should be measured. Darlene contended the makeup requirement for female beverage servers was an impermissible burden “because cosmetics can cost hundreds of dollars per year and putting on makeup requires a significant investment in time.” However, those were, at best, generalizations from her own personal experiences or knowledge. She did not produce evidence that the burdens associated with the makeup requirement were greater than the burdens the Harrah’s policy imposed on male bartenders and exceeded whatever burden is associated with ordinary good-grooming standards. Because of this sparse evidentiary record, this case may not be the appearance and grooming case that ends up before the Supreme Court. Michael Wisely, a male room-service waiter at Harrah’s casino in Atlantic City, New Jersey, attacked the 2002 revision of Harrah’s appearance policy prohibiting him from wearing his hair in a ponytail. That revision also prohibited female employees from wearing beards, mustaches, and facial hair. Wisely finally cut his hair to save his job, but lost his Title VII lawsuit. District Judge Jerome Simandle held that Harrah’s appearance policy targeted both men and women in an even-handed fashion. He granted Harrah’s dismissal motion in light of case law holding that “grooming policies, even if they include sex-specific language, fall outside Title VII.”[3] Darlene also argued the makeup requirement forced her to conform to a gender stereotype in violation of PriceWaterhouse v. Hopkins.[4] That case involved a female associate rejected for partnership because she was too “macho” and aggressive. The firm said her partnership chances would be improved if she behaved “more femininely,” had her hair styled, and wore jewelry and makeup. However, PriceWaterhouse was not an appearance and grooming standards case. The Ninth Circuit has applied PriceWaterhouse to a sexual harassment case where a man was harassed for not conforming his behavior to a traditional male stereotype,[5] but took pains to note in Nichols that ruling “does not imply that there is any violation of Title VII occasioned by reasonable regulations that require male and female employees to conform to different dress and grooming standards.” Jespersen is only an appearance and grooming standards case. The panel majority expressly declined to apply the reasoning of PriceWaterhouse to such a case. Circuit Judge Thomas disagreed on that point but did not cite any case applying PriceWaterhouse to these facts. His claim that Harrah’s is enforcing sexual stereotypes “through grooming standards” is questionable. For example, Harrah’s appearance policy does not require its female beverage servers to wear provocative clothing. It is an appearance policy only and, when viewed as a whole, as both the district court and the panel majority held it must, has the “sexual” distinctions one would expect to find in any appearance and grooming policy but not “stereotypical” distinctions. Judge Thomas’s dissent even suggests he might have joined the majority in ruling against Darlene if Harrah’s appearance policy had not been “far more stringent than simply asking female employees to wear some makeup.” Appearance and grooming standards, especially for employees who deal directly with customers or the public, are perfectly lawful. Companies have a legitimate business interest in requiring employees to be well groomed and present a neat and professional appearance at all times. Applicants for employment who object to a particular company’s standards can always apply to a company with different standards. Current employees, such as Darlene Jespersen, may be able to transfer to other jobs or, if they feel very strongly, to another employer. Properly drafted corporate appearance and grooming policies are the real winners.
The foregoing has been prepared for the general information of clients and friends of the firm. It is not meant to provide legal advice with respect to any specific matter and should not be acted upon without professional counsel. If you have any questions or require any further information regarding these or other related matters, please contact your regular Nixon Peabody LLP representative. This material may be considered advertising under certain rules of professional conduct. The foregoing has been prepared for the general information of clients and friends of the firm. It is not meant to provide legal advice with respect to any specific matter and should not be acted upon without professional counsel. If you have any questions or require any further information regarding these or other related matters, please contact your regular Nixon Peabody LLP representative. This material may be considered advertising under certain rules of professional conduct. |
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