Employment Update
January 2005

9Th Circuit Decision Permits Employer To Apply Different Standards To Male And Female Employees' Appearance

In an interesting recent decision, the 9th Circuit Court of Appeals upheld an employer's right to impose different standards of appearance on male and female employees. In Jespersen v. Harrah's Operating Company, Inc., the 9th Circuit, which is generally perceived to be the most liberal of the federal appellate courts, held that a female employee who was fired because she refused to comply with the policy requiring all female employees to wear make-up was not the victim of sexual discrimination.

Darlene Jesperson was a bartender at the sports bar in Harrah's Reno casino. She consistently received excellent evaluations from her superiors and from her customers. In 2000, Harrah's adopted new personal appearance rules for its employees, which required female bartenders to wear and maintain full facial make-up and to tease or curl their hair daily, and limited the length of their nails and the colors of nail polish they could use. Male employees were required to keep their hair above the collar and keep their nails trimmed, and were prohibited from wearing colored nail polish or facial make-up. Ms. Jesperson refused to wear make-up as required, claiming that it made her feel bad physically and emotionally, and that it interfered with the performance of her job.

Harrah's terminated her, and Ms. Jesperson brought a civil rights suit, claiming that the termination was sexual discrimination, because Harrah's had required her to conform to a stereotype, and because the appearance rules imposed unequal burdens on men and women. The 9th Circuit upheld summary judgment granted for Harrah's, on the limited ground that Ms. Jesperson had not introduced evidence supporting her claim that the rule imposed an unequal burden on men and women. The court's discussion however goes beyond this narrow ruling. The court explains that not all distinctions between male and female employees are necessarily discriminatory. The court held that it did not merely have to decide whether requiring women to wear make-up was equally burdensome as prohibiting men from wearing it. Rather it weighed the all the rules applying to men against all the rules applying to women and found them to be essentially equal.

On the surface this case seems to mean that under federal law employers can make reasonable distinctions between male and female employees' appearance - possibly beyond requiring women to wear skirts and men to wear pants. However, there are two reasons that employers should remain cautious about making different rules for men and women: the dissenting judge made a strong argument that Harrah's policy did require female employees to conform to a stereotype, and that the facts could reasonably be interpreted as sexual discrimination. Thus, the next case could be decided differently. In addition, some States' laws are even more restrictive. California, for example, has its own anti-discrimination statutes, and Ms. Jesperson would very likely have achieved a different result if she had been employed in California and her case had been brought under California, rather than federal, law.

This update is only a summary. The Law Offices of Peter A. Singler can help you understand the full impact this law may have on your business. If you have any question, please contact Bruce Napell at (707) 823-8719 or BJN@singler-law.com.

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