Cosmetics Cause of Action Cleared

An employer's dress and grooming policy that has different requirements for men and women may be challenged because the requirements for one sex are based on stereotypes, and the requirements for one sex are more burdensome than those for the other, according to the 9th U.S. Circuit Court of Appeals. It held that a female bartender who quit rather than wear makeup as required by her employer could sue for gender discrimination, but the employer nevertheless prevailed.

Darlene Jespersen had been employed as a bartender at the Harrah's casino in Reno, Nev., for 20 years. An outstanding employee, she earned consistently high ratings both in performance evaluations by her supervisors and in customer surveys. Her problems began when Harrah's embarked on its "Beverage Department Image Transformation," which included a detailed dress and grooming code.

All employees had to look "well groomed, appealing to the eye." Both male and female employees were required to wear the same uniform (black pants, white shirt, black vest and bow tie); both could wear tasteful jewelry but not outlandish hairstyles. However, there were additional, separate requirements for each gender. Men had to keep their hair short and their fingernails trimmed, and were specifically not allowed to wear makeup.

The requirements for women were more extensive with respect to hair (teased, curled or styled), stockings and fingernails. The last straw for Jespersen was that female employees were required to wear face powder, blush, mascara and lipstick. Because her past experiences with makeup had left her feeling "demeaned" and "degraded," Jespersen refused to wear it and lost her job.

Jespersen filed a sex discrimination lawsuit, claiming that the makeup policy was discriminatory because women were subjected to terms and conditions of employment to which men were not subjected, and women were required to conform to sex-based stereotypes.

The district court granted Harrah's motion for summary judgment. On appeal, the 9th Circuit held that dress and grooming policies could be challenged for sex stereotyping, for instance, if a dress requirement treated women as sex objects.

Nevertheless, it affirmed the district court's dismissal of Jespersen's case, because she had not provided any evidence that the policy was motivated by sex stereotyping. Observing that the overall image was the same for men and women, the court held that one individual's personal reaction to one part of a mostly gender-neutral policy cannot form the basis for a sex stereotyping claim.