Question

I am a female bartender at a local restaurant. My boss recently told me that I have to start wearing lipstick and mascara when I work. I enjoy the natural look, and there is obviously no requirement that my fellow male co-workers wear make-up. Could I lose my job if I don’t start wearing lipstick and mascara to work?

Answer:

Whether your employer can successfully enforce this policy regarding appearance depends on whether he also imposes some type of gender specific requirement on male employees. Many employers include in their employee handbooks a policy on dress and appearance. In a decision issued on December 28, 2004 in Jespersen v. Harrah’s Operating Company, ECR Inc., the Ninth Circuit Court of Appeals gave us some insight on what courts must look at in deciding whether such a policy can be enforced.

In February of 2000, Harrah’s Casino implemented a new policy on appearance standards for beverage servers titled the “Beverage Department Image Transformation” program. According to this new policy, all beverage servers were required to be “well groomed, appealing to the eye, be firm and body toned, and be comfortable with maintaining this look while wearing the specified uniform.” But the policy also set forth gender specific standards. Male beverage servers were prohibited from wearing makeup or colored nail polish and were required to maintain short haircuts and neatly trimmed fingernails. Female beverage servers were required to wear stockings and colored nail polish, to wear their hair “teased, curled, or styled,” and to wear makeup, including foundation/concealer and/or face powder, blush, mascara, and lip color.

One of Harrah’s female bartenders refused to wear makeup. She had been an employee of Harrah’s for nearly 20 years and had consistently been rated as an outstanding employee. Upon her refusal, she was told that the makeup requirement was mandatory for female beverage service employees and that she had 30 days to apply for a position that did not require that makeup be worn. She did not apply for another position and was terminated. She then brought a federal claim against Harrah’s alleging that the makeup requirement for female beverage servers constituted sex discrimination in violation of Title VII.

In finding that the makeup requirement did not constitute sex discrimination, the Court applied the “unequal burdens” test, weighing the cost and time necessary for employees of each sex to comply with the policy. It set forth that “employers are permitted to apply different appearance standards to each sex so long as those standards are equal.” The Court determined that Harrah’s appearance policy was no more burdensome for women than it was for men.

The complaining employee argued that the makeup requirement imposed tangible burdens on women that men do not share because cosmetics can cost hundreds of dollars per year, and because putting on makeup requires a significant investment in time. The Court pointed out, however, that the employee presented no evidence concerning the cost or time burdens that female bartenders had to bear to comply with the makeup requirement, and that it was her burden to present such evidence. It is possible, therefore, that if this complaining employee had presented tangible evidence that showed that women would be required to spend more money than men under this policy, the Court would have reached a different conclusion.

In its decision, the Court gave examples of gender specific standards that have been held to be discriminatory. For example, an employer that insisted that all employees maintain a weight that corresponded to the “desirable” weight for their height as determined by an insurance company table, but that required that women maintain the weight corresponding to women of “medium” build, and that men maintain the weight corresponding to men of “large” build, imposed unequal burdens on men and women, was discriminatory, and had to be justified by a bona fide occupational qualification. Another employer’s policy that required female employees to wear uniforms, but allowed male employees to wear “appropriate business attire” of their choosing was held to be sex discrimination in violation of Title VII.

Employers who wish to have an enforceable policy concerning dress and appearance for their employees should be sure that the standards apply to both sexes with reasonable distinctions where necessary, and that the policy not be more burdensome for one sex than for the other.
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