Grooming standards can mean sexual discrimination
Published 01/14/05

When an employer's personal grooming codes create a higher burden for one gender than the other, it is possible that grooming codes may constitute sexual employment discrimination.

Generally even though grooming codes are different for each gender, such as allowing a woman's hair to be longer than a man's hair, they are not found to constitute sexual discrimination. The United States Court of Appeals for the Ninth Circuit decision of December 28, 2004 in the case of Darlene Jespersen v. Harrah's Operating Company discussed when grooming policies may constitute sexual discrimination.

In that case, Jespersen was a female bartender for the Reno, Nevada casino who was a very good employee. The casino eventually created a "Personal Best" program, which among other requirements, required all female beverage servers to wear make-up and have their hair teased, curled or styled each day. The men were required to only maintain short haircuts and were prohibited from having any make-up. Jespersen, after the policy was imposed, refused to wear make-up and was fired and the suit therein followed.

The Court applied an "unequal burden" test to determine whether or not the grooming code requirements for women were less favorable than to men. They ultimately found Jespersen was not allowed to go before a jury as to whether or not this grooming code disparately treated women.

However, one of the judges on the panel hearing the case disagreed in part since it is obviously more expensive to use make-up than to not, and more time consuming and possibly more expensive to tease, curl, or style your hair each day rather than maintaining a short haircut. Furthermore, that judge who disagreed with the rest of the panel noted that sexual stereotyping is inherent in certain appearance standards, and that such grooming standards do not permit sex differentiated appearance standards that denigrate one gender based on sexual stereotypes.

By way of example: (a) requiring women flight attendants to maintain a weight considered appropriate for a woman of a medium build, wherein men being allowed to have a weight considered appropriate for a man of a large build; (b) requiring women to wear uniforms wherein men were only to wear appropriate business attire; and (c) requiring women to wear contacts while men may wear glasses have all been found by courts to be sexually discriminatory grooming standards.

For those employers who have in place or are considering such grooming standards, it would be best to speak with the company's employment counsel and understand the possible distinctions between grooming standards that tend to create an unequal burden upon one gender.

J. Daniel Marr is a director and shareholder at Hamblett & Kerrigan, P.A. His legal practice includes counseling businesses and business persons on a variety of legal issues, including employment, and advocating on their behalf. You can reach Attorney Marr by e-mail at: dmarr@hamker.com

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