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
Summary of Paper
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In Jespersen v. Harrah's (2004), a 9th Circuit
panel upheld Harrah's termination of a highperforming 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
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
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“Unequal Burdens” Test
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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
Harrah’s “Personal Best”
Appearance Standards (excerpts)
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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.”
Enforcement of Policy
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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
Jespersen’s objections
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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
“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?!
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Gender Stereotype issue
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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
Recent 9th Circuit Gender
Stereotype Cases
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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
Gender-stereotypic
appearance as BFOQ?
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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?
How about Adverse Impact?
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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.
Jespersen’s Contentions
Outstanding performance ratings
from both customers & supervisors
obtained without wearing makeup
 Compliance with makeup policy led
to worse performance
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Reduced, objectified self-image
 Customers constantly hitting on her!
 Negative relationship with performance
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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
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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
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Questions [if time]?
Thank you for your interest
and attention!