• Ninth Circuit Permits Policy Requiring Female Employees To Wear Make-up
  • February 4, 2005 | Author: Sandra R. King
  • Law Firm: Manatt, Phelps & Phillips, LLP - Los Angeles Office
  • The United States Court of Appeals for the Ninth Circuit has held that an employer's policy requiring female employees to wear make-up was permissible under Title VII. Jespersen v. Harrah's Operating Co., ERC Inc., 2004 U.S. App. LEXIS 26892 (9th Cir. 2004). In Jespersen, the employer, Harrah's Casino, adopted a grooming policy that required female beverage servers to wear make-up and colored nail polish, maintain styled hair, and wear stockings. Under the same policy, male beverage servers were prohibited from wearing make-up or wearing colored nail polish, and were required to maintain short hair and clean, neatly-trimmed fingernails.

    Ms. Jespersen, a long-term bartender, was terminated for refusing to wear make-up. She sued, alleging that her termination constituted sex discrimination under Title VII. The district court granted summary judgment for Harrah's and Ms. Jespersen appealed.

    The Ninth Circuit upheld the district court's ruling on the basis that Harrah's grooming policy imposed equal burdens on both sexes. The Court compared the relative burdens Harrah's grooming policy imposed on male and female beverage servers. Significantly, the Court compared the entire series of requirements for female employees with the entire series of requirements for males, rather than weighing the burden of each corresponding requirement (e.g., total female requirements versus total male requirements rather than polished nails versus neatly-trimmed nails or short hair versus styled hair). After Ms. Jespersen failed to present evidence as to the cost or time burden the make-up requirement imposed, the Court found that she had failed to meet her burden of raising a triable issue of fact and upheld summary judgment for Harrah's.

    Jespersen is significant for employers with employee grooming policies for three reasons. First, it allows employers to impose grooming policies that may include some perceived sex stereotyping so long as the policy burdens both sexes equally. Second, in comparing the relative burdens a grooming policy imposes to determine whether the policy is permissible, employers should look at the total burden of their policy on each sex rather than comparing each individual policy requirement. Finally, Jespersen largely turned on the Plaintiff's failure to present evidence of the cost and time burdens the grooming policy imposed on female bartenders in relation to the burdens imposed on male bartenders. If Ms. Jespersen had presented this specific evidence, she might have avoided summary judgment. Employers should therefore be thoughtful in designing a grooming policy so that even if an employee presented evidence of the relative burdens of the policy, those burdens would be found to be equal.