Legality of an 'Appearance' Policy

Employees and job applicants are increasingly filing claims of discrimination based on their appearance or image. The future scope of such claims may hinge on the outcome of a case currently pending in the U.S. Court of Appeals for the Ninth Circuit. Recently, the Ninth Circuit granted en banc review to a female bartender who was fired for refusing to wear makeup in compliance with her employer's grooming policy. Jespersen v. Harrah's Operating Co., No. 03-15045 (9th Cir.) (rehearing en banc granted May 13, 2005). The Ninth Circuit vacated the Dec. 28, 2004 decision by a divided three-judge panel. That panel affirmed the district court's summary judgment decision in favor of the employer and upheld a dress code that established analogous but different grooming standards for male and female employees. Jespersen v. Harrah's Operating Co., 392 F.3d 1076 (9th Cir. 2004). The panel's decision was its first application of “the 'unequal burdens' test to gender-differentiated dress and grooming requirements.”