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« State's definition of "disability" does not require a substantial limitation on a major life activity | Main | Jespersen v. Harrah's Operating Co - a satire »

Gender-based grooming code survives Title VII attack
April 16, 2006 by Ross Runkel at LawMemo

The 9th Circuit - en banc, 7-4 - has upheld an employer's grooming code that expressly contains different standards for women than for men. The decision leaves me wondering whether that court ever reads the statute.

Jespersen v. Harrah's Operating Co (9th Cir en banc 04/14/2006).

Employment Law Memo notified its readers about this case in the 04/17/2006 issue, emailed on 04/16/2006.

Basic facts: Female bartenders 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.

The court held that these rules did not violate Title VII, and analyzed the case along two lines of reasoning.

Unequal burdens test

  • The court applied the "unequal burdens" test announced in Franks v. United Airlines, 216 F3d 845 (9th Cir 2000) (en banc). Even though the employer's code expressly differentiated between the sexes, the court said it is not "facially discriminatory." (A facially discriminatory rule can be upheld only if it is a BFOQ, which this employer could not have proved.)
  • An employee has to prove that the rule places a greater burden on one gender than the other. Jespersen did not submit any evidence on this point, and the court refused to take judicial notice of the fact that it takes a good deal of time and money to apply daily makeup.
  • Three dissenting judges would take judicial notice of the necessary facts.
  • My view:

    Utter nonsense. Nothing in Title VII (hello; read the statute) says anything about "equal burdens." This is a judge-made add-on. Apparently this is a special rule just for dress codes, appearance rules, and the like. You can bet the 9th Circuit would laugh at any suggestion that an employer could have gender-different rules as to when employees take lunch, where they park, which computers they can use. Can you imagine a court allowing such gender-different rules on the ground that the "burdens are not unequal"? Did I already say this is utter nonsense?

    Not one of the 11 judges challenged the legitimacy of the judge-created "equal burdens" test. They all assumed it was correct. I would have thought one of them might have gone back to read the text of Title VII and ask whether this rule can possibly be derived from the statute.

    Assuming an "unequal burden" analysis is the way to go, then I agree 100 percent with the majority when they say that Jespersen needed to present proof. I thought the dissent was stretching things by saying they would take judicial notice of how burdensome it is to put on makeup.

Sex stereotyping

  • The court applied the sex stereotyping analysis of Price Waterhouse v. Hopkins, 490 US 228 (1989), and found no stereotyping. The majority said the employer's rules "do not require Jespersen to conform to a stereotypical image that would objectively impede her ability to perform her job requirements as a bartender."
  • Four dissenting judges argued that the employer's rules contained a message that "women's undoctored faces compare unfavorably to men's ... because of a cultural assumption - and gender-based stereotype - that women's faces are incomplete ... without full makeup."
  • My view:

    One of the specific facts in Price Waterhouse was that part of the sex stereotyping had to do with the fact that Hopkins didn't wear makeup. Price Waterhouse is not the easiest case in the world to work with. The sex stereotyping was extreme and extensive, and it's not clear how it should be applied to cases such as Jespersen's

    The 9th Circuit majority takes the position that sex stereotyping violates Title VII only when it interferes with the employee's ability to do the assigned job. I see no way to reconcile that view with the US Supreme Court decisions dealing with sex harassment, which have not imposed such a requirement. I see no way to reconcile that view with the text of Title VII, which does not impose such a requirement.

    Consider a similar grooming code that differentiated between two religions. The court would laugh the employer out of court. Not here, however, for one simple reason. The grooming code fit the court's own sex stereotypes exactly.

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