A recent decision from the Ninth Circuit Court of Appeals highlights an emerging trend of “sex stereotype” challenges to employer grooming and appearance policies. The case also reveals several ways employers can craft policies to avoid these challenges

The case, Jespersen v. Harrah’s Operating Co., involved a Reno, Nevada casino with several appearance requirements pertaining to bartenders of both sexes, along with other requirements that were different for male and female employees. Men were required to maintain short hair and neatly-groomed fingernails.  Women were required to wear their hair down and styled, as well as have on makeup and lip color.  When Jespersen, a female bartender, refused to wear makeup and lip color, the casino fired her.  Jespersen brought Title VII claims against the casino on two separate theories of sex discrimination.  First, she claimed the makeup requirement forced her to adhere to a sex stereotype.  The Ninth Circuit “emphasize[d] that we do not preclude, as a matter of law, a claim of sex stereotyping on the basis of dress or appearance codes.”  The court rejected the plaintiff’s claim, however, because the makeup requirement did not objectively hinder a woman’s ability to perform the job requirements.

Second, Jespersen claimed the policy was discriminatory because it imposed a heavier burden on women than men. The court ruled that grooming standards are allowed to “appropriately differentiate between the genders” so long as they do not impose a burden that is unreasonable and significantly unequal. To determine whether the burden is unequal, the court examined the amount of time and money needed to comply with the policy. Here, the court rejected Jespersen’s claim because she did not submit evidence of the burdens imposed by wearing makeup.

Post-Jespersen, employers should take several steps to avoid having their policies found sexually discriminatory:

(1)  Do not require members of either gender to conform to gender stereotypes that objectively impair job performance. 

(2)  Do not impose on one sex a significantly greater burden as measured by the time and money needed to comply with the policy.  Although the court in Jespersen judged the policy as a whole rather than each individual aspect, corresponding obligations for each aspect help show that the entire policy is equal (e.g., men must shave, while women must wear makeup).

(3)  Limit your policy to matters that are job-related.  Courts will be more likely to find an aesthetic requirement reasonable if employees interface with the public rather than sit in the back office.

(4)  Consider the impact your policy will have on your current employees and future recruits.  On the plus side, your policy can establish your brand and attract certain workers.  In contrast, it might conflict with the values of some employees, resulting in the loss of otherwise valuable employees.  For example, the policy in Jespersen caused the casino to lose a bartender with exemplary ratings during her twenty years with the company.

If you have any questions about sex stereotypes or grooming and appearance policies, please contact the author(s) at cleek@elarbeethompson.comor holladay@elarbeethompson.com.