Legal Gender Bending

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Sometimes yes

Newspaper and television commentators expressed consternation over a recent federal

appeals court decision that Harrah’s Casino in Reno, Nevada, had the right to fire bartender

Darlene

Jespersen for refusing to wear makeup. Harrah’s adopted a "Personal Best" grooming

policy requiring Harrah’s employees to adhere to certain guidelines, including short hair and

neatly trimmed fingernails for men. Men were barred from wearing makeup. Harrah’s female

bartenders and beverage servers had similar grooming requirements, but were required to

wear makeup.

Jespersen, a 21-year employee of Harrah’s, refused to comply with the policy and

claimed that the differences in the policy for male and female beverage servers constituted

disparate-treatment sex discrimination in violation of Title VII. The 9th U.S. Circuit Court of

Appeals assessed the actual impact of Harrah’s makeup/no makeup policy on both male

and female employees, weighed the cost and time necessary for employees of each sex to

comply with the policy and ultimately agreed with Harrah’s approach.

The court noted simply that Jespersen failed to produce "some" evidence that the

makeup requirement placed a greater requirement on female bartenders than the

requirement that men maintain short haircuts and neatly trimmed nails. There was noevidence that these burdens were greater for women than men, and the court ruled that

Harrah’s policy was not a violation of Title VII since it did not discriminate because of

"immutable" or unchangeable characteristics, and because it imposed equal burdens on

both sexes. In my opinion, Jespersen lost because of a technicality--the judges thought she

needed more evidence to prove her case.

A similar case arose recently in Iowa. A male employee filed a lawsuit against his

employer claiming he was discriminated against on the basis of gender because hisemployer told him he could not wear a stud in his ear. Female employees for the same

employer were allowed to wear studs or earrings. The court ruled that wearing an earring

stud was not an immutable characteristic--you could cover up the stud or take it out--and

that federal law did not prohibit employers from establishing personal grooming standards

that might treat males and females differently.

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Keep your grooming standards as gender-neutral as possible. If there is a necessary

difference, treat the standard as if it is an accountant’s ledger in which the requirements for

males equal the requirements for females. Remember, these are disparate-treatment

lawsuits.

No differences can be based on race. Period.

If you are going to use gender as a bona fide occupational qualification, think of the

"qualification" as an essential function of the job--a topless female dancer must be female;

and a male performer would probably required to play the role of Michelangelo’s David.

Employers sometimes face liability for treating one gender differently than another. And

sometimes they don’t. Like BTK, sometimes employers just get away with it--for a while.

The information contained in this article is intended to provide useful information on the

topic covered, but should not be construed as legal advice or a legal opinion. Also

remember that state laws may differ from the federal law.

Workforce Management , May 2005, pp. 12-14 -- Subscribe Now!

(http://www.workforce.com/subscribe)

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Legal Gender Bending

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