Credit Union Magazine: Dress and Discrimination

Dress codes are enforceable, but beware sexual stereotyping.

DRESS CODES are common but can be controversial enough to prompt litigation. On Dec. 28, 2004, the Ninth Circuit Court of Appeals in San Francisco filed a decision upholding a dress code that established different grooming standards for male and female employees. The case, Jespersen v. Harrah's Operating Co., shows how federal laws prohibiting sex discrimination apply to dress codes.

Darlene Jespersen worked for nearly 20 years in a Harrah's Casino sports bar. She was an outstanding employee, according to customer feedback forms and supervisor evaluations. Jespersen didn't wear makeup because she felt it "took away her credibility" and interfered with her ability to be an effective bartender, which sometimes required her to deal with unruly, intoxicated guests. For years, Jespersen's choice not to wear makeup wasn't an issue.

This changed in February 2000, when Harrah's implemented a "beverage department image transformation" program to create a "brand standard of excellence." The "Personal Best" program imposed specific appearance standards for employees in certain services. All beverage service employees had to attend Personal Best Image Training, where image facilitators explained program standards and tested employees' proficiency at adhering to them. At the training's conclusion, two photographs were taken of each employee (one portrait and one full body) looking his or her "personal best." The photos were placed in the employee's file and given to the supervisor to be used as an "appearance measurement tool."

In March 2000, Jespersen acknowledged receipt of the Personal Best policy and committed to adhere to it. But shortly thereafter, the standards were amended to require female beverage service employees to wear makeup. The original standard prohibiting males from wearing makeup remained in effect. Jespersen refused to comply with the makeup rule and eventually was fired. She filed a lawsuit in federal district court alleging the makeup requirement constituted disparate treatment sex discrimination in violation of Title VII (which prohibits discrimination on the basis of sex, race, national origin, color, and religion). The district court granted judgment for Harrah's, holding the policy was lawful. Jespersen appealed to the Ninth Circuit.

To prevail on a Title VII claim, an employee must establish that, but for his or her gender, the employee would have been treated differently. The Ninth Circuit reviewed the Personal Best program to determine if its standards were discriminatory by requiring women to wear makeup and prohibiting men from doing so, and requiring women to wear their hair "teased, curled, or styled" each day while requiring men to maintain short haircuts. Previous decisions have held that grooming and appearance standards that apply differently to women and men don't constitute discrimination on the basis of sex.

The court found that when Congress passed Title VII in 1964, it intended the law prohibit discrimination based only on "immutable characteristics" and didn't apply to things that could be changed, such as grooming and dress standards. Thus, the court reasoned that employers can adopt different appearance standards for each sex, so long as they don't impose a greater burden on one sex than the other. The Ninth Circuit rejected Jespersen's argument that the makeup rule imposed an unequal burden on women because it's time-consuming and expensive, and requires women to conform to sex stereotypes.

Prudent employers who have adopted dress codes will consider the arguments advanced by the dissenting opinion filed in Jespersen. The dissent raised the question of why the make-up rule didn't run afoul of Ninth Circuit precedent banning discrimination, including sexual harassment, on the basis of sexual stereotyping: "There is no grounding whatsoever in Tide VII for the notion that harassing an employee because he or she fails to conform to a sex stereotype is illegitimate, while firing them for the same reason is acceptable."

The lesson from Jespersen: Carefully drafted dress codes are enforceable and don't violate Title VII. Not all gender-differentiated appearance requirements are prohibited. But employers should avoid imposing a greater burden on one sex than the other and be wary of sexual stereotyping. We probably haven't heard the last word on this subject.

KAREN SAUL is a shareholder at Farleigh, Wada & Witt, P.C., Portland, Ore. Her practice focuses on employment law and related litigation. Contact her at ksaul@fwwlaw.com.