MacElree Harvey Resources - Careful What You Wear: Employees and Dress Code

Employment Group

Appeal ruling says that it is legal to fire a woman for refusing to wear makeup at work

Female workers throughout Chester County may want to start paying closer attention to their employment manuals, especially the chapter on what to wear and what not to wear on the job. Recently, in a split decision, the U.S. Court of Appeals for the Ninth Circuit ruled that it was legal for an employer to fire a woman for refusing to wear makeup at work.

The Case: Jespersen v. Harrah's Operating Company
Darlene Jespersen had been employed as a bartender at the sports bar in Harrah's Casino in Reno, Nevada, for nearly 20 years. She was roundly considered to be an outstanding employee.

In the 1980s and '90s, Harrah's encouraged its female employees to wear makeup, but did not require them to do so. Jespersen tried wearing makeup during this period, but she discontinued the practice because wearing makeup "made her feel sick, degraded, exposed, and violated."

In February 2000, Harrah's initiated a "Beverage Department Image Transformation" program designed to create a "brand of standard excellence." The program requires that all beverage servers be "well-groomed, appealing to the eye, be firm and body-toned, and be comfortable with maintaining this look while wearing the specified uniform."

Female beverage servers are obligated to wear stockings and colored nail polish, and must wear their hair "teased, curled, or styled." In addition, the program's regulations provide that lip color and makeup (foundation/concealer and/or face powder, as well as blush and mascara) must be worn and applied neatly in complimentary colors." In contrast, male beverage servers are prohibited from wearing makeup or colored nail polish, and may only keep their hair short and fingernails neatly trimmed.

In implementing the program, Harrah's also required its employees to attend "Personal Best Image Training" in order to learn how to comply with the company's new regulations. Once training was completed, photographs were taken of the employees looking their "Personal Best." Supervisors use the photographs to determine whether employees look their "Personal Best" on a daily basis.

Despite the implementation of Harrah's appearance policy, Jespersen refused to wear makeup at work. She was informed that the makeup requirement was mandatory for female beverage servers and was given 30 days to apply for a position that did not require that makeup be worn. After the 30 days had expired, Jespersen was fired because she had neither applied for another position nor started wearing makeup. She sued Harrah's, alleging that her termination violated Title VII of the 1964 Civil Rights Act, which prohibits employers from treating employees differently because of their sex.

The Ruling and Its Impact
With respect to standards like the ones imposed by Harrah's, which regulate only mutable appearance characteristics that are capable of change, the Court of Appeals explained that only if the application of those standards is more stringent upon one sex than the other do the standards violate Title VII. The Court stated that under the applicable "unequal burdens" test, employers may apply appearance standards to the sexes only if those standards impose equal burdens upon males and females.

Ultimately, the Court held that Jespersen had failed to introduce evidence raising a triable issue of fact with respect to whether Harrah's sex-differentiated appearance standards constitute sex discrimination in violation of Title VII. In so concluding, the Court emphasized that there was no evidence in the record in support of Jespersen's contention that Harrah's regulations imposed an unequal burden upon females by virtue of the cost and time commitment involved in the application of cosmetics.

Jespersen had likewise failed to present evidence regarding the burdens that Harrah's regulations imposed upon male bartenders. This omission, according to the Court, made a comparison of the hardships imposed upon the sexes impossible. While the Ninth Circuit's decision in Jespersen is not binding upon Pennsylvania courts, it does provide both employers and employees with some food for thought.

Certainly, employers who implement standards regulating the appearance of their employees must consider whether those standards impose equivalent hardships upon the sexes. Correspondingly, employees may have to accept that while at work, employers have control over a larger part of their lives than merely their work product.

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At a glance
Employee Dress Code and Discrimination

Recently, in a split decision, the U.S. Court of Appeals for the Ninth Circuit ruled that it was legal for an employer to fire a woman for refusing to wear makeup at work.

With respect to standards that regulate only mutable appearance characteristics capable of change, the Court of Appeals explained that only if the application of those standards is more stringent upon one sex than the other do the standards violate Title VII of the 1964 Civil Rights Act.