Disparate Impact/Disparate Treatment Case Study Case Study

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The policy required women to wear foundation, concealer, or powder, blush, mascara, and to make sure that they have lip color on at all times. Not only did women have to wear makeup, they were required to have a makeover by an image consultant. Once the employee and the image consultant had devised the employee's "personal best" look, then the employee's picture would be taken, and their appearance would be expected to conform to the picture each day he or she came to work. Jespersen refused to comply with the makeup requirements. She was given 30 days to apply for a new position that did not have a makeup requirement, but she refused to apply for a new position and was subsequently terminated. Jespersen filed suit against Harrah's alleging that the policy of requiring female beverage servers to wear makeup constituted disparate sex discrimination in violation of Title VII of the Civil Rights Act of 1964.

In granting Harrah's motion for summary judgment, and dismissing the complaint, the district court found that the appearance policy did not violate Title VII because they did not discriminate on the basis of characteristics associated with her sex and imposed equal burdens on both sexes. The 9th Circuit Court agreed with the district court, finding that if they were to take judicial notice of the fact that the application of makeup requires some expenditure of time and money, the plaintiff would still have the burden of producing some evidence that the burdens associated with the makeup requirement are greater than the burdens the policy imposes on male bartenders.

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"We have previously held that grooming and appearance standards that apply differently to women and men do not constitute discrimination on the basis of sex." In addition, the court held that Harrah's policy did not conflict with the 1989 Supreme ruling in which a female associate, who was perceived as too "macho," successfully challenged her exclusion from an accounting firm's partnership by noting the Supreme Court, "did not address the specific question of whether an employer can impose sex-differentiated appearance and grooming standards on its male and female employees."

This decision illustrates that employers may have policies that contain general appearance standards. An employer is allowed to enforce reasonable grooming standards on an employee as long as they do not impose unequal burdens on either sex. Thus, an employer should have a clear appearance and conduct policy in place, especially if the policies have the potential of creating issues regarding an employee's gender. They must avoid grooming standards that are different for men and women, making them as gender-neutral as possible. If the policy requires non-changeable characteristics, they will run into problems, or lawsuits, or both. If there is a necessary difference, the employer must treat the standard as if it is an accountant's ledger in which the requirements for males equal the requirements for females......

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