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Gender-specific standards go to en banc hearing
May 16, 2005 by Ross Runkel at LawMemo
The 9th Circuit has ordered [here] an en banc rehearing in Jespersen v. Harrah's Operating Co (9th Cir 12/28/2004), where a 3-judge panel allowed an employer to fire a bartender for non-compliance with gender-specific grooming standards.
Darlene Jespersen sued under Title VII claiming that the employer's policy requiring females to wear makeup was discrimination on the basis of sex. The trial court granted summary judgment for the employer; the 9th Circuit (2-1) affirmed.
Jespersen was a bartender for nearly 20 years and was an outstanding employee. The employer implemented an appearance standard for beverage servers, which included gender-specific standards for male and female beverage servers. Females were required to wear makeup, stockings, and colored nail polish, and to wear their hair teased, curled, or styled. Males were prohibited from wearing makeup or colored nail polish, and were required to maintain short haircuts and neatly trimmed fingernails. Jespersen refused to comply with the requirement to wear makeup, and the employer discharged her for that reason.
(1) The 9th Circuit relied primarily on the "unequal burdens" test announced in Franks v. United Airlines, 216 F3d 845 (9th Cir 2000) (en banc). In the Franks case female flight attendants challenged the employer's weight restrictions because women were held to more strict requirements than men. The court in Franks held that a "sex-differentiated appearance standard that imposes unequal burdens on men and women is disparate treatment that must be justified as a BFOQ."
Applying the unequal burdens test to this case required the court to "weigh the cost and time necessary for employees of each sex to comply" with the employer's policy. (a) First, the court decided that the burdens must be evaluated with reference to all of the requirements of the employer's appearance policy, not merely that portion dealing with wearing makeup. (b) Second, the court considered Jespersen's argument that the makeup rule imposes tangible burdens on women that men do not share because makeup can cost hundreds of dollars a year and requires a significant investment of time. The court noted that Jespersen cited academic literature in support of her cost and time argument, but that she did not submit evidence of the cost and time burdens that apply to female bartenders. (c) Third, even if the court took judicial notice of the academic literature, there was no evidence of the actual burdens that apply to male bartenders, so the court would be unable to weigh the difference.
(2) Jespersen also argued that the employer's policy required employees to conform to sexual stereotypes and that this was made impermissible by Price Waterhouse v. Hopkins, 490 US 228 (1989). The 9th Circuit recognized that Price Waterhouse held that Title VII bans discrimination on the basis of an employee's failure to dress and behave according to the stereotype corresponding to her gender. However, that case did not address sex-differentiated appearance and grooming standards. Also, although the 9th Circuit has "applied the reasoning of Price Waterhouse in sexual harassment cases, we have not done so in the context of appearance and grooming standards cases, and we decline to do so here."
DISSENT: The dissent argued that this was a classic Price Waterhouse case, and that there was no grounding in Title VII for holding that harassing an individual for failure to comply with gender stereotypes is illegitimate while discharging them for the same reason is acceptable. As for the unequal burdens test, the dissent argued that the focus should be on the makeup rule rather than the entire appearance policy, and that the court should weigh more than time and money - the court should also weigh the sex-stereotyping inherent in certain appearance standards.
My view: The 9th Circuit blew it in the original panel decision.
(1) An "equal burden" analysis in a case like this is nonsense. You don't need to even get into the murky realm of Price Waterhouse gender stereotypes. The employer had a double-standard for males and females. Unlawful on its face. If there were some biological basis for the distinction (separate rest rooms, for example), I could be swayed. But not for makeup, hair-teasing, and fingernails.
(2) Worse nonsense is the court's notion that it's legal to fire someone for non-compliance with a gender stereotype, although it's illegal to harass her for the same thing.
Michael Fox first blogged about this case at Jottings By An Employer's Lawyer [here]. His most recent comment is [here].
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