Recently, it has been reported that campaign staffers were encouraged to “dress like women” while on duty. So what can an employer require of an employee with respect to his or her appearance?
Employers are permitted to set grooming standards for their employees and those standards may differ for male and female employees. Over ten years ago, the Ninth Circuit Court of Appeals held that: “Grooming standards that appropriately differentiate between the genders are not facially discriminatory.” Jespersen v. Harrah’s Operating Co., Inc. (9th Cir. 2006) 444 F.3d 1104. In that case, Harrah’s casino had a “personal best” grooming policy that required all of its bartenders to wear the same uniform but had differing policies for men and women with respect to their hair, hands and face. Men were not permitted to wear make-up and were required to have short hair and women were required to wear eye and face make up. A female employee objected to the requirement that she wear make-up and brought a claim under Title VII for sex stereotyping. In a controversial opinion, the Court determined that the differences in the grooming policy for men and women did not give rise to a sex stereotyping claim.
However, Courts have found violations of Title VII where there is an “undue burden” placed on female employees that is not placed on male employees. In Frank v. United Airlines (9th Cir. 2000) 216 F.3d 845, female flight attendants were required to stay under a certain weight in order to keep their jobs. Many of the female flight attendants went on extreme diets to try to make the cut but were unsuccessful in losing enough weight. As a result, they were disciplined and/or terminated. The Court held that United’s policy had a disparate impact on women and was facially discriminatory because it applied less favorably to women than to men.
Likewise, an “attractiveness” standard that imposes greater requirements of one sex than on the opposite sex “constitutes unlawful sexual discrimination unless such differential treatment can be justified as a bona fide occupational qualification.” Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028. Courts have not had much opportunity to determine when differential treatment may be a bona fide occupational qualification but this exception is extremely narrow and the burden is on the employer to show why the differential treatment is necessary – a heavy burden for most jobs!
It is also a violation of both Title VII and California’s Fair Employment and Housing Act to discriminate based on stereotypes about gender. In Price Waterhouse v. Hopkins (1989) 490 U.S. 228, an undeniably exceptional female employee was up for partnership. In assessing her for partnership, the evaluators criticized her for being “macho,” advised she should take “a course at charm school” and suggested she should “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.” The Supreme Court held, that employment decisions based on gender stereotypes are unlawful.
If you feel you have suffered discrimination based on grooming standards or gender stereotyping, contact us today.