Sex Discrimination for a legitimate business purpose is policy

The recent case 392 F.3d 1076 (2004) Jespersen v. Harrahís Operating Company analyzed the balance between a personís right to not be discriminated against on the basis of sex against the employerís right to require certain grooming standards as a part of its marketing policies.

In Jesperson, the plaintiff was a bartender. In the year 200, Harrahís implemented a ìPersonal Bestî policy that required employees to adhere to numerous policies regarding appearance and grooming, including coiffure, make-up and other requirements for both men and women. Plaintiff argued that the make-up requirement was discriminatory since under the policy, women were required to wear make-up whereas men were prohibited from using it. She claimed wearing make up made her feel demeaned as a person, that wearing it made her feel as though she were a ìsex objectî.

In a rather surprising decision for such a traditionally liberal court, the Ninth Circuit ruled in Harrahís favor, saying that no claim could arise unless the burden on the plaintiff to comply with the overall policy was greater that the burden on the men. The Court opined that the overall burden of men having to groom themselves per the policy was not demonstrably less than the overall burden facing the women, and that Harrahís had a legitimate business reason for the policy.

The key to the victory for Harrahís in the case was the ability to demonstrate a direct relationship between the policy and a legitimate business purpose. Because Harrahís is in the entertainment industry, the make-up requirement had a purpose related to their marketing plan and there was no discrimination taking place. The lesson for employers is to be sure any policy that applies differently to men and women is based on a clearly defined legitimate business purpose.