The 9th U.S. Circuit Court of Appeals dismissed a lawsuit alleging Harrah's Entertainment violated federal law by firing a female bartender who refused to wear makeup.

Harrah's policy required women to wear some facial makeup, but prohibited men from wearing any. The policy required men to maintain short hair while women could have long hair. Jespersen refused to comply with the policy, saying she found the makeup requirement offensive and it interfered with her job. The company fired her for refusing to wear makeup.

Jesperson subsequently filed suit against Harrah’s for discrimination, alleging that the dress code discriminated against women by "(1) subjecting them to terms and conditions of employment to which men are not similarly subjected, and (2) requiring that women conform to sex-based stereotypes as a term and condition of employment." However, the court ruled that Jespersen failed to provide sufficient evidence that the policy was any more burdensome for women than it was for men.

The Court stated, "We have long recognized that companies may differentiate between men and women in appearance and grooming policies, and so have other circuits," "The material issue under our settled law is not whether the policies are different, but whether the policy imposed on the plaintiff creates an 'unequal burden' for the plaintiff's gender."

Jespersen also argued that the policy was a form of sex stereotyping in violation of federal law. In rejecting Jesperson’s argument, the Court ruled that she failed to provide any evidence to suggest Harrah's motivation was to stereotype female bartenders.

"The policy does not single out Jespersen, it applies to all of the bartenders, male and female. It requires all of the bartenders to wear exactly the same uniforms while interacting with the public in the context of the entertainment industry. It is for the most part unisex, from the black tie to the non-skid shoes. There is no evidence in this record to indicate that the policy was adopted to make women bartenders conform to a commonly-accepted stereotypical image of what women should wear. The record contains nothing to suggest the grooming standards would objectively inhibit a woman's ability to do the job. The only evidence in the record to support the stereotyping claim is Jespersen's own subjective reaction to the makeup requirement."

There are no statutory dress code requirements. Most legal problems stemming from dress codes concern gender bias and religious discrimination. Dress codes are acceptable as long as they are not found to be discriminatory. Employers may require professional business attire for employees who interact with the public. Casual dress code has been a trend in years past, but some businesses are shifting towards a more restrictive dress code in order to convey a more professional tone. It is important to adopt a dress code for your employees, especially if they have contact with your customers and the public on a regular basis. A dress code should clearly state what types of clothing are appropriate in the workplace and should list specific examples. When drafting your dress code, ask yourself the following questions:

You and your employees may have different views about what clothing falls within the definition of casual dress (for example, they might consider tank tops and tee-shirts to be casual, whereas you are thinking of shirts with button-down collars and no ties).

When drafting your dress code, you must be careful to avoid the legal pitfalls that may result in sex, religion, or race discrimination claims. It is important that your dress code be fair, evenly applied, and reasonable.

Contact Dave Hansen, Senior Human Resources Consultant if you need help drafting a dress code policy or a handbook at 515-221-1718.