In a recent ruling, the Ninth Circuit ruled that employers can set separate grooming standards for men and women as long as those standards are not based upon gender stereotypes or would be otherwise burdensome on one gender over the other.
This in itself is not surprising as the case was made in 1982 for female flight attendants. What can make this case murky however, is the question as to whether requiring women to wear makeup is reinforcing female gender stereotypes. The Court ruled (with several dissentions) that it does not .
From SF Gate:
Employers can set different dress codes and grooming standards for women than for men, as long as the rules aren’t burdensome or based on sex stereotypes, a federal appeals court decided Friday in the case of a female casino bartender who was fired for refusing to wear makeup.
“Grooming standards that appropriately discriminate between the genders are not facially discriminatory,” the Ninth U.S. Circuit Court of Appeals in San Francisco said in a 7-4 ruling.
The court said some sex-differentiated workplace rules may be discriminatory — for example, weight rules imposed only on female flight attendants, which the court struck down in 1982, or a requirement that women wear sexually provocative outfits.
But in this case, the court said, the casino’s makeup rules did not reinforce any stereotypes about women, and the plaintiff offered no evidence that the overall grooming standards posed greater burdens for women than for men.
Dissenters voiced strong objections, with Judge Alex Kozinski observing that he and many of his colleagues would object to “a rule that all judges wear face powder, blush, mascara and lipstick while on the bench.”
But a lawyer for the defeated plaintiff found something to applaud.
“This case confirms that dress codes can be challenged for imposing sex stereotypes,” said Jennifer Pizer of the Lambda Legal Defense and Education Fund. While disagreeing with the court’s conclusion that plaintiff Darlene Jespersen failed to prove discrimination, Pizer said the ruling overall was “a very significant advance in the law.”
Lawyers for Harrah’s, Jespersen’s former employer, were unavailable for comment. After a three-judge panel ruled in Harrah’s favor in December 2004, company spokesman Gary Thompson said the casino had imposed the makeup rule in response to customer complaints about lax grooming. “It’s a standard that I think is acceptable in society,” he said.
Jespersen worked at the Harrah’s Reno sports bar for nearly 20 years and received outstanding evaluations from supervisors and customers, before the company announced its new “personal best” policy in 2000.
It required female drink-servers to wear makeup — foundation, blush, mascara and lip color. Men were prohibited from wearing makeup and were required to keep their hair and fingernails trimmed.
Jespersen said wearing makeup made her feel degraded and hurt her credibility when dealing with unruly customers. After leaving Harrah’s, she applied unsuccessfully for other bartending jobs and now works at three jobs to make ends meet, Pizer said.
Harrah’s says it no longer enforces the makeup requirement and at one point offered to rehire Jespersen without makeup, but instead she sued the company for lost pay. Pizer said Jespersen, at the time, was unwilling to be the only exception to the policy and wanted compensation for the many months she spent unemployed.
In upholding a federal judge’s dismissal of the suit, the court said the company’s grooming policy applied to both sexes and was “aimed at creating a professional and very similar look.”
While Jespersen argued that putting on and taking off makeup each day required more time and money for women than an occasional haircut for men, she submitted no supporting evidence, and the court was unwilling to draw any such conclusions, Chief Judge Mary Schroeder said in the majority opinion.
Kozinski, in dissent, was incredulous.
“You don’t need an expert witness to figure out that such items don’t grow on trees,” he said. As for the time burdens on women, he added, “Even those of us who don’t wear makeup know how long it can take from the hundreds of hours we’ve spent over the years frantically tapping our toes and pointing to our wrists.”
The judges also disagreed on whether the makeup requirement promoted sex stereotypes.
“This is not a case where the dress or appearance requirement is intended to be sexually provocative, and tending to stereotype women as sex objects,” Schroeder said. She argued that the court must consider the overall effect of the grooming standards rather than singling out the makeup requirement.
Dissenting Judge Harry Pregerson countered that the makeup requirement was based on “a cultural assumption — and gender-based stereotype — that women’s faces are incomplete, unattractive, or unprofessional without full makeup.”