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In a significant recent decision, Jespersen v. Harrah’s Operating Co., Inc.,444 F.3d 1104 (9th Cir. 2006), the Ninth Circuit U.S. Court of Appeals, sitting en banc, affirmed an employer’s right to maintain gender-specific grooming policies under Title VII of the Civil Rights Act of 1964 so long as such policies neither impose unequal burdens on men and women nor reflect gender-based stereotypes. The plaintiff in Jespersenwas a female bartender working at Harrah’s Reno, Nev., casino who was terminated from her position after 20 years of service because she refused to wear makeup in keeping with Harrah’s newly adopted “Personal Best” grooming policy. By all accounts, she had an otherwise exemplary work record. The en bancpanel of the Ninth Circuit in Jespersenupheld the rulings of both the District Court and a three-judge panel of the Ninth Circuit affirming summary judgment in favor of Harrah’s. While Jespersenis clearly a victory for employers, the Ninth Circuit’s analysis also contains some troubling language indicating that the outcome may very well have been different if the employee had placed more evidence into the record. Under the Personal Best grooming policy, both male and female bartenders were required to be “well groomed, appealing to the eye, be firm and body toned, and be comfortable with maintaining this look while wearing the specified uniform,” which consisted of black pants, white shirt, black vest and black bow tie. Males were prohibited from wearing eye and facial makeup and were required to keep their hair from extending below their shirt collars. Females were required to wear their hair teased, curled or styled and down at all times, and were also required to wear makeup, including face powder, blush, mascara and lip color at all times. The plaintiff did not wear makeup on or off the job, found the requirement offensive and refused to comply. Unable to transfer to another position at a similar pay scale, her employment was terminated. She sued her employer, alleging that application of the Personal Best policy constituted illegal gender discrimination in violation of Title VII by burdening women more than men and by forcing women to conform to sex-based stereotypes. The District Court granted summary judgment to the employer, holding that the policy did not impose unequal burdens on men and women, did not discriminate against the plaintiff on the basis of immutable characteristics, and that grooming policies fell outside of Title VII’s prohibition against gender discrimination based on stereotyping. A three-judge panel of the Ninth Circuit affirmed, holding that there was insufficient evidence that the policy imposed an unequal burden on men and women and that gender stereotyping reflected in grooming standards could only violate Title VII if it rose to the level of sexual harassment. Sitting en banc, the Ninth Circuit affirmed the judgment of both the District Court and three-judge panel, but applied a somewhat different analysis. First, the en bancpanel of the Ninth Circuit held that the material issue is not whether sex-specific grooming policies are different, but whether the policies impose an unequal burden on one set of employees because of their gender. The en bancpanel of the Ninth Circuit therefore affirmed the lower court rulings because the Personal Best policy: (1) was not facially more burdensome to plaintiff because she was a woman; and (2) because she failed to present evidence proving that it actually created an unequal burden. Significantly, however, this analysis was based in part on the plaintiff’s failure to place any evidence before the court that the makeup requirement caused a burden on women unequal to that for men, along with the court’s refusal to take judicial notice of the fact that the female-only makeup requirement placed higher time or cost requirements on women than it did on men. Accordingly, the en bancpanel of the Ninth Circuit did not preclude future plaintiffs from presenting evidence that sex-specific makeup requirements for women are more expensive and time-consuming (and therefore potentially impose an unequal burden) than different sex-specific grooming requirements for men. Second, with regard to gender stereotyping, the en bancpanel of Ninth Circuit held that while grooming policies based on gender stereotyping can violate Title VII, the Personal Best policy did not do so because: (1) it did not single out the plaintiff and there was no evidence that it was adopted to make women bartenders conform to a commonly accepted stereotypical image of what women should wear; (2) there was no evidence that the policy would objectively inhibit a woman’s ability to do the job; and (3) the grooming standards did not condone or expose the plaintiff to a hostile work environment. In reaching this conclusion, the majority of the en bancpanel also rejected any analysis splitting the grooming policy into component parts, holding that the effect of a grooming policy must be analyzed in its entirety. Jespersenis an important decision because, despite its ambiguities, it continues to allow employers the flexibility to impose reasonable sex-specific grooming standards under Title VII. Employers must make sure that the burdens of any such policies fall equally on both men and women, and that standards are not motivated by gender stereotypes. Employers should also be sensitive, however, that, in addition to challenges alleging gender discrimination, grooming policies are often challenged on the basis of alleged religious discrimination, disability discrimination, racial discrimination and national origin discrimination. Employers should also be aware of the effect of state and local laws impacting dress, appearance and grooming standards. In California, for example, such limitations include the requirement that an employer apply its gender-specific grooming standards consistently with an employee’s self-identified gender identity and a ban on prohibiting women from wearing pants at work. (See Cal. Govt. Code � � 12949 and 12947.5.) Employers are therefore advised to review their grooming policies to ensure compliance with the current standards. Marc A . Kooninis an attorney in Sedgwick, Detert, Moran& Arnold’s employment and labor group in San Francisco. He represents and advises management in employment and labor-management disputes. He can be reached at( 415) 781-7900 or [email protected].

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