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

College of  Business

San Jose State University

One Washington Square

San Jose, CA 95192-0070

(408) 924-1342 (office telephone)

(408)-924-3555 (departmental fax)

malos_s@cob.sjsu.edu (e-mail)

 

 

 

 

 

Paper submitted to the Pacific Northwest Academy of Legal Studies in Business

Vancouver, British Columbia, Canada

April 21-24, 2005

 

 

NINTH CIRCUIT PANEL WRONG ON ITS FACE:

GENDER-BASED APPEARANCE STANDARDS UPHELD OVER TITLE VII

SEX DISCRIMINATION CLAIM

 

ABSTRACT

In Jespersen v. Harrah's (2004), a Ninth Circuit panel upheld Harrah's termination of a high-performing bartender for refusal to wear makeup pursuant to Harrah's newly-imposed "Personal Best" policy. The policy requires women to wear colored nail polish, "teased, curled, or styled" hair, and facial makeup including foundation, blush, mascara, and lip color. The Court's decision appears to be out of step with its own “unequal burdens” test and other Ninth Circuit and U.S. Supreme Court cases (e.g., Nichols v. Azteca Restaurant, 2001; Rene v. MGM Grand Hotel, 2002; and Price Waterhouse v. Hopkins, 1989; respectively) which have found workplace standards that perpetuate gender stereotypes to be discriminatory under Title VII.

 

Key Words: Appearance or Grooming Standards; Sex Discrimination; Gender Stereotypes.

 

 

 

 

Ninth Circuit Panel Wrong on its Face:

Gender-based Appearance Standards Upheld over Title VII Sex Discrimination Claim

            Gender-differentiated dress codes, grooming standards, and other appearance-based employment regulations have typically escaped the general rule that under Title VII, explicit differences in treatment based on sex are discriminatory and impermissible unless justified within the extremely narrow bona fide occupational qualification (BFOQ) exception (see, e.g., Kelley v. Johnson, 1976; Philips v. Martin Marietta Corp., 1971; UAW v. Johnson Controls, Inc., 1991; Wilson v. Southwest Airlines Co., 1981). Such regulations, including those applicable to hair length, hair style, uniforms, jewelry, and (more recently) body piercings, have drawn minimal judicial concern under Title VII because they do not involve so-called “immutable characteristics” such as race or color, and current or prospective employees typically have the ability to comply (see, e.g., Baker v. Cal. Land Title, 1974, and Harper v. Blockbuster, 1998 [hair length]; Booth et al. v. Maryland Dept. of Public Safety, 2003 [dreadlocks]; Cloutier v. Costco, 2004 [body modification, cutting, and piercing]). However, as the Wilson court made clear, “a BFOQ for sex must be denied where sex is merely useful for attracting customers of the opposite sex,” lest Title VII’s purpose to prevent denial of employment “based on stereotyped characterizations of the sexes” be undermined (quoting Philips).

            Nonetheless, in Jespersen v. Harrah's (Dec. 28, 2004), a Ninth Circuit panel majority approved Harrah’s firing of Jespersen because she refused to wear makeup. Jespersen presented evidence that she refused because wearing makeup made her feel sick, degraded, “dolled up” like a sexual object, undignified, and in fact interfered with her otherwise excellent performance as a beverage server. She also objected to the cost of compliance with Harrah’s “Personal Best” appearance standards, arguing that the added time and expense required to maintain styled hair and to purchase and apply makeup in a manner approximating a complete makeover was unduly burdensome, particularly when considering that “comparable” grooming standards applicable to men in her position involved only hair length limits. Despite the apparent merit of this position, the majority found the evidentiary record insufficient to support Jespersen’s contention that her burden of complying with the “Personal Best” policy was any greater than that of male bartenders, or otherwise went beyond that associated with “ordinary good-grooming standards.” The majority also rejected Jespersen’s Price Waterhouse contention that application of the policy improperly enforced compliance with a discriminatory gender stereotype.

            The majority's analysis is suspect for a number of reasons. First, if the court were truly unwilling to take judicial notice of the fact that makeup and products to “tease, curl, or style” women’s hair are expensive and take considerable time to apply, they could have remanded the case to the District Court and let the question go to a jury; to uphold outright dismissal on summary judgment seems a harsh and misapplied remedy, particularly where the issue involves matters “with which factfinders have everyday familiarity … such that a reasonable jury could return a verdict” for Jespersen (see Anderson v. Liberty Lobby, 1986; cf. Rivera v. Trump, 1997, another casino case, which found no merit to the contention that the trial court had abused its discretion by taking judicial notice that wearing a pony tail was not a "traditional" hair style for men). Second, as the dissent aptly points out, to reject the gender stereotype argument in light of Price Waterhouse (the well-known case in which a highly effective female accounting manager was turned down for partnership in the face of male partners' comments that she should wear more makeup and act more feminine) would afford to white collar professionals greater protection from sex discrimination than service industry workers, who are both more likely to be subjected to such policies and less likely to be able to stand up to their employer given the typical power balance in such employment relationships.  

            To give the Jespersen majority some credit, there may be an implicit unwillingness to accept characterization of a dispute over makeup and hair styling as implicating a serious civil rights issue in today's litigious employment environment. However, as societal standards about sexual identity and "appropriate" business appearance continue to evolve, these sorts of issues are likely to arise again. The remainder of this paper further examines the Jespersen majority's application of the "unequal burdens" test, the current status of gender stereotype litigation, and the potential viability of adverse impact analysis in these types of cases.

Harrah's Appearance Standards as Disparate Treatment under the Unequal Burdens Test

            In general, courts have been deferential to an employer's desire to regulate employee appearance in order to present to its customers a reasonably professional-looking workforce (e.g., Cloutier v. Costco, 2004; Wisely v. Harrah's, 2004). However, because Harrah's appearance standards on their face appear to apply differently to men and women, they would seem to be prima facie discriminatory under Title VII, and thus sustainable only if based on a BFOQ (Frank v. United Airlines, 2000; 42 U.S.C. §2000e-2(e)(1)). The BFOQ issue was not raised on appeal in Jespersen (it will be revisited in a later section of this paper), so the majority focused primarily on the "unequal burdens" test articulated in Frank. In that case, the Ninth Circuit held en banc that flight attendant weight restrictions limiting women to a stricter standard than men ("medium" build vs. "large" build) were impermissible: "[A] sex-differentiated appearance standard that imposes unequal burdens on men and women is disparate treatment that must be justified as a BFOQ". The Jespersen majority distinguished Frank on the basis that "it was apparent from the face of the policies at issue that female flight attendants were subject to a more onerous standard than were males," whereas evidence would be needed to demonstrate that Harrah's appearance standards imposed unequal burdens on one gender or the other. Because the majority found such evidence lacking in the record, it upheld summary dismissal of the case.

            The relevant parts of Harrah's "Personal Best" policy are shown in the Appendix. In addition to the requirement that women's hair "must be teased, curled, or styled every day you work", an explicit makeup requirement was added for women mandating that "make up (foundation/concealer and/or face powder, as well as blush and mascara) must be worn and applied neatly in complimentary colors," and that "lip color must be worn at all times." Moreover, in order to enforce its policy, Harrah's required service employees to attend "Personal Best Image Training" at which "Image Facilitators" gave women a makeover to get them "properly" made up. Harrah's then instructed employees on adherence to the standards, took portrait and full body photographs of each employee looking their "Personal Best," placed these photographs in the employee's personnel file, distributed them to the employee's supervisor, and used them as the standard to which the employee would be held accountable on a daily basis.

            With due respect to the findings of the majority, these requirements clearly seem to exceed for women the basic "clean, neat, and tidy" standards applicable to both sexes. Given that compliance with them no doubt entails a substantial additional expenditure of unpaid pre-shift preparation time in addition to the cost of the makeup and hair products themselves, it is hard to accept the majority's conclusions that violation of the unequal burdens test was not adequately shown and that the case should be summarily dismissed for lack of evidence. Furthermore, as the U.S. Supreme Court made clear in City of Los Angeles v. Manhart et al. (1978), the proper focus of inquiry under this test is burden on and fairness to particular individuals, not gender classes as a whole. Based on Jespersen’s arguments as summarized above, there certainly seems to have been an adequate showing that she was unequally burdened compared with men in her job class.

Harrah's Appearance Standards as Impermissibly Gender-stereotypic under Title VII

            In Price Waterhouse v. Hopkins (1989), the U.S. Supreme Court held that an employer may not force employees to conform to a sex stereotype associated with their gender as a condition of employment. In addition to the male partners’ comments about makeup and femininity mentioned earlier, there were also comments in Price Waterhouse referring to Hopkins as "macho" and suggesting that she "overcompensated for being a woman" by behaving aggressively in the workplace. The Supreme Court responded that "we are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group," and held that discrimination because of Hopkins’ failure to conform to a traditional feminine gender stereotype was discriminatory under Title VII.

            The Ninth Circuit has since gone even further in the gender stereotype arena in Nichols v. Azteca Restaurant (2001) and Rene v. MGM Grand Hotel (2002).  In Nichols, sexual harassment of a male employee for failure to conform to a more masculine gender stereotype (i.e., walking and carrying his tray "like a woman") was found to be discriminatory under Title VII, while in Rene, an “effeminate” male butler on a hotel floor for high-rolling gamblers successfully alleged Title VII sexual harassment based on assaults "of a sexual nature" by male coworkers. In fact, a plurality of judges in Rene endorsed an independent claim for gender-stereotype sexual harassment (for further analysis of gender stereotype and “effeminacy” discrimination issues, see Hardage, 2002; Trotier, 2002). However, the Jespersen majority distinguished these cases as based on harassment, whereas the dissent found this distinction unconvincing given that harassment was neither alleged nor required in Price Waterhouse.

            Before going further, it may be useful to try to identify what aspect of job performance might have justified Harrah’s makeup and hair styling regulations. If “performance” means fulfilling the responsibilities of a beverage server, then Jespersen’s performance had been outstanding; both customers and supervisors alike had given her superb recommendations despite the fact that she did not wear makeup, and when she had tried to wear makeup prior to being fired, she found that it actually interfered with her job effectiveness. Other than an arbitrary preference on the part of management, the probable purpose that comes to mind is one of generating higher revenues from larger numbers of male customers who would presumably find a gender-stereotypic image of femininity desirable and would patronize Harrah’s as a result.

            If this is indeed the case, then it raises the issue of whether potentially discriminatory gender stereotyping should be allowed if attractiveness to members of the opposite sex is part of an employer’s marketing or overall business strategy. Put another way, it raises the issues of whether and when gender, “sex appeal”, or a particular gender-based definition of appearance can or should be a BFOQ. As a number of commentators have also noted in recent years, these issues have already arisen in diverse cases involving airline flight attendants (Wilson, Frank); broadcast journalists (Craft v. Metromedia, Inc., 1985); women's health club managers (EEOC v. Sedita, 1991); and restaurant or cocktail servers in establishments that appear to offer sex-based visual titillation to the opposite gender in addition to food and beverages (e.g., Hooters, Playboy clubs, etc.; see Adamitis, 2000; Bello, 2004; Schneyer, 1998; Yuracko, 2004).

            Yuracko argues that courts have generally distinguished between privacy-based BFOQ cases (i.e., those involving jobs such as labor-room nurses or restroom attendants that entail physical contact with or observation of naked bodies) and sexual titillation-based BFOQ cases, being more permissive toward the employer in privacy-based cases. Within the titillation-based cases, courts appear to have further distinguished between businesses selling virtually nothing but sexual titillation (“sex” businesses) and those offering sexual titillation along with some other type of good or service (“sex-plus” businesses). In these types of cases, courts have typically permitted sex discrimination based on appearance only if it is necessary to preserve the “essence” of the business. Thus, businesses employing lap dancers in strip clubs ought to fare better with objectifying or stereotypic appearance standards than those employing flight attendants in the commercial airline industry.

            Actual case examples, however, are hard to find; the much-discussed Hooters litigation, in which male applicants challenged Hooters’ practice of hiring only attractive, well-endowed women to be food and beverage servers, was settled prior to judicial determination in the midst of an EEOC investigation, and Playboy clubs, which won the right to utilize such practices before the now-defunct New York Human Rights Appeal Board, have long since ceased to exist. Further, at least one case has held (although under New York state law, not Title VII) that sex could not be a permissible BFOQ for a restaurant that sought to dress female waitresses “in alluring costumes” solely for the purpose of enhancing sales volume (see Schneyer, 1998, citing Guardian Capital Corp. v. New York State Div. of Human Rights, 1974). Although it is not entirely clear where the “Personal Best” standards would fall on this analytic spectrum, under analogous reasoning it seems dubious to expect that the BFOQ argument should have been sustained on appeal had it been raised by Harrah's in Jespersen.

Harrah's Appearance Standards as Potentially Impermissible under Adverse Impact Analysis

            Thus far, the analysis has focused solely on disparate treatment and possible exceptions, both because the extant cases do so exclusively and because Harrah’s “Personal Best” standards appear to make explicit sex-based distinctions. However, the Jespersen majority implicitly seemed to find these standards neutral on their face (and dismissed the case for lack of evidence to the contrary) as requiring nothing more of either gender beyond the burden of “normal” grooming standards. It is therefore arguable that adverse impact analysis might be more productively applied by plaintiffs in future cases (see generally, Bal, 1993, and Bello, 2004, as acknowledging this possibility).

            Assuming for the sake of argument--as the Jespersen majority apparently did--that Harrah’s standards overall were neutral as stated, they might well disproportionately exclude women in actual operation due to the greater burden of compliance (future litigants would undoubtedly learn from the Jespersen decision and present substantial evidence in that regard!). If this can be demonstrated, then the burden would shift to Harrah’s to justify its appearance standards as valid (i.e., predictive of job performance) and consistent with business necessity (Griggs v. Duke Power Co., 1971). Were evidence also presented, as was the case in Jespersen, that stellar performance reviews could be obtained by females without wearing makeup and that compliance with the standards could actually be detrimental to performance, the employer would have the proverbial tough row to hoe in its own defense.

Conclusion

            Thus far, only a few federal, state, and local jurisdictions (e.g., the District of Columbia, the state of Michigan, the city of Santa Cruz, California; see Bello, 2004) have expressly prohibited appearance-based discrimination, and the circumstances under which these prohibitions apply are limited. However, the very notion of “attractiveness”, like Harrah's "appealing to the eye" standard (see Appendix), is so inherently subjective that there are bound to be challenges to employment standards which rely on employers' chosen definitions of these constructs. Increasing demographic diversity in workforces around the globe will likely chip away at extant gender and other role stereotypes over time. Until then, judicial decisions like Jespersen will continue to cause those “forced to be feminine”, “dolled up” like a sexual object, or otherwise subjected to gender stereotyping to suffer the adverse effects--including termination--of seemingly unfair, and probably discriminatory, employment practices.

 

 REFERENCES

Adamitis, E. M. (2000). Appearance matters: A proposal to limit appearance discrimination in employment. 75 Washington Law Review 195 (January).

Bal, J. (1993). Proving appearance-related sex discrimination in television news: A disparate impact analysis. University of Chicago Legal Forum 211.

Bello, J. D. (2004). Attractiveness as hiring criteria: Savvy business practice or racial discrimination? 8 Journal of Gender, Race & Justice 483; 504-505 (Fall).

Hardage, J. A. (2002). Nichols v. Azteca Restaurant Enterprises, Inc. and the legacy of Price Waterhouse v. Hopkins: Does Title VII prohibit “effeminacy” discrimination? 54 Alabama Law Review 193 (Fall).

Schneyer, K. L. (1998). Hooting: Public and popular discourse about sex discrimination. 31 University of Michigan Journal of Law Reform 551 (Spring).

Trotier, G. S. (2002). Dude looks like a lady: Protection based on gender stereotyping discrimination as developed in Nichols v. Azteca Restaurant Enterprises, Inc. 20 Law and Inequality Journal 237 (Summer).

Yuracko, K. A. (2004). Private nurses and Playboy Bunnies: Explaining permissible sex discrimination. 92 California Law Review 147; 151-152 (January).


CASES CITED

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)

 

Baker v. Cal. Land Title Co., 507 F.2nd 895 (9th Cir.1974)

 

Booth et al. v. Maryland Dept. of Public Safety, et al., 327 F.3rd 377 (4th Cir. 2003 )

 

City of Los Angeles Dept. of Water and Power, et al., v. Manhart et al., 435 U.S. 702 (1978)

 

Cloutier v. Costco Wholesale Corp., 390 F.3rd 126 (1st Cir. 2004)

 

Craft v. Metromedia, Inc., 766 F.2nd 1205 (8th Cir. 1985)

 

EEOC v. Audrey Sedita d/b/a Women’s Workout World, 755 F. Supp. 808 (N. D. Ill. 1991)

 

Frank v. United Airlines, Inc., 216 F.3rd 845; 855 (9th Cir. 2000) (en banc)

 

Guardian Capital Corp. v. New York State Div. of Human Rights, 360 N.Y.S. 2nd 937 (1974)

 

Griggs v. Duke Power Co., 401 U.S. 424 (1971)

 

Harper v. Blockbuster Entertainment Corp., 139 F.3rd 1385 (11th Cir. 1998)

 

Jespersen v. Harrah's Entertainment, Inc.  392 F.3rd 1076 (9th Cir. 2004)

 

Kelley v. Johnson, 425 U.S. 238 (1976)

 

Nichols v. Azteca Rest. Enters., Inc., 256 F. 3rd 684 (9th Cir. 2001)

 

Philips v. Martin Marietta Corp., 400 U.S. 542 (1971)

 

Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)

 

Rene v. MGM Grand Hotel, Inc., 305 F. 3rd 1061 (9th Cir., 2002) (en banc)

 

Rivera v. Trump Plaza Hotel and Casino, 702 A.2nd 1359 (N.J. Super. 1997)

 

UAW v. Johnson Controls, Inc., 499 U.S. 187 (1991)

 

Wilson v. Southwest Airlines Co., 517 F. Supp. 292 (N.D. Tex. 1981)

 

Wiseley v. Harrah's Entertainment, Inc., 94 Fair Empl. Prac. Cas. 402 (D. N.J., 2004)

 

APPENDIX

Harrah's "Personal Best" Appearance Standards (pertinent excerpts):

"All Beverage Service Personnel, in addition to being friendly, polite, courteous and responsive to our customer's needs, must possess the ability to physically perform the essential factors of the job as set forth in the standard job descriptions. They must be well groomed, appealing to the eye, be firm and body toned, and be comfortable with maintaining this look while wearing the specified uniform. Additional factors to be considered include, but are not limited to, hair styles, overall body contour, and degree of comfort the employee projects while wearing the uniform.
Beverage Bartenders and Barbacks will adhere to these additional guidelines: 
- Appearance: Must maintain Personal Best Image portrayed at time 
Males: 
- Hair must not extend below top of shirt collar. Ponytails are prohibited.
Females: 
- Hair must be teased, curled, or styled every day you work. Hair must be worn down at all times, no exceptions. 
- Stockings are to be of nude or natural color consistent with employee's skin tone. No runs. 
- Nail polish can be clear, white, pink or red color only. No exotic nail art or length.