NINTH CIRCUIT PANEL WRONG ON ITS FACE: GENDER-BASED APPEARANCE STANDARDS UPHELD OVER TITLE VII SEX DISCRIMINATION CLAIM

1. NINTH CIRCUIT PANEL WRONG ON ITS FACE: GENDER-BASED APPEARANCE STANDARDS UPHELD OVER TITLE VII SEX DISCRIMINATION CLAIM Stan Malos, J.D., Ph.D. Professor of Management/HRM San Jose State University

2. Summary of Paper • In Jespersen v. Harrah's (2004), a 9th Circuit panel upheld Harrah's termination of a high-performing bartender for refusal to wear makeup pursuant to its "Personal Best" appearance code • The policy requires women to wear colored nail polish, "teased, curled, or styled" hair, and facial makeup (foundation, blush, mascara, lip color) • The decision is out of step with other 9th Circuit and U.S. Supreme Court cases which have found workplace standards that perpetuate gender stereotypes to be discriminatory under Title VII

3. But there’s more to it than that ... • Panel majority’s misapplication of Title VII “Unequal Burdens” Test • Panel majority’s mishandling of Price Waterhouse gender stereotype issue • Difficulties with gender-stereotypic appearance standards as BFOQs

4. “Unequal Burdens” Test • Appearance standards involving “mutable” characteristics” (e.g., hair length limits for men, bans on dreadlocks or body piercing) are generally OK under Title VII • However, such standards that differ in strictness based on gender are improper if they impose “unequal burdens” • Frank v. United Airlines (flight attendant restrictions limit weight to “medium build” for women, “large build” for men—not OK) • But, test misapplied by Jespersen majority

5. Harrah’s “Personal Best” Appearance Standards (excerpts) • Must be “well groomed, appealing to the eye, firm and body toned” [both sexes] • Must maintain Personal Best Image [both sexes] • Males: ”Hair must not extend below top of shirt collar. Ponytails are prohibited.” • Females: ”Hair must be teased, curled, or styled every day ... make up (foundation/concealer and/or face powder, as well as blush and mascara) must be worn and applied neatly in complimentary colors ... lip color must be worn at all times.”  

6. Enforcement of Policy • Each Harrah’s service employee must attend "Personal Best Image Training“ • Harrah’s "Image Facilitators" give women makeovers to get them "properly" made up • Harrah's instructs each employee on compliance • Harrah’s takes portrait & full body photographs of each employee looking their "Personal Best“ • Photographs placed in employee's personnel file, distributed to employee's supervisor • Employee held accountable to appearance in photos on a daily basis

7. Jespersen’s objections • Wearing makeup makes her feel sick, degraded, “dolled up” like a sexual object, and undignified • Wearing makeup interferes with her otherwise excellent performance as a beverage server • Cost of compliance is substantial (e.g., added pre-shift time and expense required to maintain styled hair, purchase/apply makeup in a manner approximating complete makeover) • Comparable grooming standards for men only involve hair length & “no ponytail” restrictions

8. “Equal” Burdens?! • Majority finds record insufficient to show different burdens by gender • Majority refuses to take judicial notice of time & cost of compliance • Majority concludes burdens overall no greater than “ordinary” grooming requirements for either sex ... • Huh?!

9. Gender Stereotype issue • Price Waterhouse v. Hopkins: Female accountant denied partnership after male partners comment she is too “macho”, “overcompensates” for being a woman, should wear more makeup, act “feminine” • U.S. Supreme Court (1989) finds denial of promotion for failure to conform to traditional feminine gender stereotype discriminatory under Title VII

10. Recent 9th Circuit Gender Stereotype Cases • Nichols v. Azteca Restaurant (2001): Sexual harassment of male employee for failure to conform to a more masculine gender stereotype (walking, carrying tray "like a woman“) found discriminatory under Title VII • Rene v. MGM Grand (2002): Sexual harassment of “effeminate” male butler on hotel floor for high-rollers sustains Title VII claim based on assaults "of a sexual nature" by male coworkers • Jespersen majority distinguishes Nichols and Rene as based on harassment • Dissent finds distinction unconvincing, noting harassment not involved in Price Waterhouse

11. Gender-stereotypic appearance as BFOQ? • Cases have involved flight attendants, broadcast journalists, women’s health club managers, food or cocktail servers • Hooters? Playboy clubs? • Commentators distinguish “sex” from “sex-plus” businesses • Test: Whether gender-based appearance standard necessary to preserve “essence” of employer’s business • Harrah’s “Personal Best” standards?

12. How about Adverse Impact? • If “Personal Best” standards are indeed “neutral” [implicit in majority decision?], might they still have disproportionate gender impact in operation and effect? • If so, then they must be validated (i.e., job related and consistent with business necessity; Griggs v. Duke Power, 1971) • Question: Could they be? • Answer: Probably not.

13. Jespersen’s Contentions • Outstanding performance ratings from both customers & supervisors obtained without wearing makeup • Compliance with makeup policy led to worse performance • Reduced, objectified self-image • Customers constantly hitting on her! • Negative relationship with performance

14. So, Validation seems unlikely • Future litigants may thus want to consider adverse impact claims in addition to disparate treatment • Appearance standards inherently subjective and difficult to relate to performance in most cases

15. Conclusion • Increasing demographic diversity in global workforces should erode role stereotypes over time; but, ... • Until that occurs, unfortunate—and probably discriminatory—gender specific employment practices will continue to take their toll on individuals and organizations alike

16. Questions [if time]? Thank you for your interest and attention!