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	Ninth Circuit Permits Employers to Impose Different Grooming Standards for Men and Women Employment/Labor  The Ninth Circuit Court of Appeals concluded unanimously that a make-up and grooming policy that contained different requirements for men and women did not place "an undue burden" on female employees and did not violate the protections of Title VII. But the Court divided 7-4 on whether the differential grooming standards was motivated by sex stereotyping. The Ninth Circuit agreed to reconsider the case en banc to reaffirm circuit law concerning appearance and grooming standards, and to clarify the evolving law of sex stereotyping claims. The case is Jespersen v. Harrah's Operating Co., No. 03-15045 (9th Cir. Apr. 14, 2006). The Court found that despite the fact that Harrah Casino's policy contained sex-differentiated requirements regarding each employee's hair, hands and face, the policy on its face did not place a greater burden on one gender than the other. The Court also noted that the plaintiff failed to show that the grooming policy imposed would inhibit a woman's ability to do the job. Background The plaintiff, Darlene Jesperson, had been a model employee for nearly 21 years and worked without wearing makeup until Harrah's amended its appearance standards in April 2000 to require women servers to wear make- up. Men, on the other hand, were forbidden from wearing makeup. Jesperson objected to the make-up requirement and was let go by Harrah's after she refused other employment within the casino to which the make-up requirement did not apply. In 2002, a federal judge ruled against Jesperson. In 2004, a divided Ninth Circuit three-judge panel upheld the lower court ruling. The plaintiff then requested a rehearing en banc, and a panel of eleven judges reached the same conclusion reaffirming the employer's right to maintain different grooming standards for men and women. Conclusion While the Court reaffirmed an employer's right to adopt different dress and grooming standards, employers should tread carefully when imposing sex-differentiated uniform or appearance requirements. As Judge Kozinski, one of the dissenters noted, "Quality employees are difficult to find in any industry and I would think an employer would long hesitate before forcing a loyal, long-time employee to quit over an honest and heartfelt difference of opinion about a matter of personal significance to her." ********** For further information or questions regarding this eAlert, please contact Wayne Hersh at 949-474-1880. The Berger Kahn Labor & Employment Group publishes eAlerts on timely labor and employment issues. This eAlert is intended for general information purposes only, and does not constitute legal advice. Labor & Employment Contacts: Wayne Hersh 949-474-1880, x340 whersh@bergerkahn.com Jon Miller 949-474-1880, x322 jmiller@bergerkahn.com ©2006 Berger Kahn, A Law Corporation. All Rights Reserved. Back
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