Appearance Policies – Is Making Up Hard to Do?
By Randall P. Sutton
Saalfeld Griggs PC
Under the employment discrimination laws, men and women are not supposed to be treated differently. But men and women are different. This can make for some uneasy legal maneuvering, as courts struggle to mesh employment laws with the real and stereotypical differences between men and women.
Not being known for their fashion savvy or sense of style, the courts have had an especially difficult time with employer dress codes and appearance policies. Although no one questions an employer’s right to ensure a clean and presentable workforce, defining a nondiscriminatory appearance standard can be problematic. Social norms and stereotypes may treat the sexes differently when it comes to makeup, skirts or pants, jewelry, and hair styles.
A recent court case involving a bartender at the Harrah’s casino in Reno specifically addressed these issues. Harrah’s implemented a “Beverage Department Image Transformation” program that imposed new grooming and appearance standards. Harrah’s required that both male and female bartenders wear an identical uniform, which consisted of black pants, a white shirt, comfortable black shoes and a bow tie. Men were expected to keep hair above the collar and wear no makeup. In contrast, women were expected to wear their hair down, tease and style it, and wear makeup, including powder, blush, mascara, and lip color.
The plaintiff was a long-term employee with an excellent performance record. However, she did not wear makeup on or off the job, as it made her feel uncomfortable and she felt it interfered with her ability to do her job. She sued Harrah’s, alleging that the new policy: 1) subjected her to terms and conditions of employment that men were not subjected to; and 2) required that women conform to sex-based stereotypes as a term and condition of employment.
The court wrestled with whether requiring women to wear makeup was a violation of Title VII, which prohibits employer policies that place an unequal burden on individuals of a particular gender. In this case, the court approved of Harrah’s policy based on some technical evidentiary issues. More importantly, however, the court hinted at a road map for employers to follow in creating dress and appearance policies.
Unequal Burden: The court focused on whether the appearance policy places a greater burden on one sex over another. For example, the court had previously allowed a policy requiring men to wear ties, because the additional burden was not significant. In a different case, the court rejected a policy that required women to maintain a “medium frame” while not imposing the same restriction on men. With regard to the Harrah’s bartender, although the plaintiff argued that it takes more time and money for a woman to buy and apply makeup than it does for a man to shave and keep his hair short, the court held that she had not submitted enough evidence to prove her argument.
Sex Stereotypes: The court also focused on whether the appearance policy perpetuates sexual stereotypes. For example, the court previously struck down Continental Airline’s maximum weight requirement for female flight attendants, finding that the goal of the policy was to sell sex, as the airline was merely trying to compete with other airlines by hiring attractive flight attendants. Courts have likewise struck down policies that require the employee to wear revealing or sexually provocative outfits. However, the court didn’t feel that Harrah’s makeup requirement perpetuated any sexual stereotype.
In developing your own appearance policies, carefully evaluate whether the policy imposes an extra financial or time burden on one sex over another. In this case, Harrah’s success in enforcing its policy rested in large part on the fact that the uniforms to be worn by female and male bartenders were identical.
Other than avoiding unequal burdens and sexual stereotyping, what else should an employer consider in developing a dress code? As a general rule, grooming regulations and dress codes that are based upon “commonly accepted social norms” and are “reasonably related” to the employer’s business needs will be acceptable. Requiring men’s hair to be short, but not restricting the length of women’s hair, is an example. Allowing skirts for women but not for men is another. Be careful about policies that specifically target wearing ethnic dress, as such a policy that would appear to have a racial or national origin bias.
When enforcing your dress code, avoid selective enforcement against one sex or minority group. Also keep religious beliefs in mind. With regard to safety-related attire, courts are generally much more tolerant of strict codes that have the purpose of promoting safety, even if the restriction might infringe on religious practices or impose other burdens.
For help in reviewing any of your employment policies or handling employee relations issues, please contact Randy Sutton or Sean Driscoll in our office.