Legal Gender Bending

Alan Rupe (/authors/421-alan-rupe/articles)

April 29, 2005
I live in Wichita, Kansas, a quiet town known for being the birthplace of Pizza Hut,
Mentholatum and Cessna Aircraft. The big news recently was the capture of "BTK" ("Bind,
Torture and Kill"), the self-named serial killer who had terrorized the Wichita community
since the 1970s. Despite frequent communication with media and local law enforcement,
BTK eluded capture for many years and finally disappeared from the public eye. Last year,
BTK suddenly began to again taunt police by sending cryptic poems, puzzles and items
removed from the murder scenes.
BTKs capture dominated the local news, edging out the front-page story on the opening
of Babes and Booze, a bar in Wichitas newly renovated Old Town, where the waitresses
wear only sprayed-on latex as work uniforms. Another big story in this Bible Belt community
was the relocation of the local Hooters to an exclusive upscale eastside location.
As a lawyer who routinely defends gender discrimination cases, it is fascinating to
observe how an employer such as Babes and Booze is able to impose a different standard
of conduct for male and female employees within the confines of Title VII of the 1964 Civil
Rights Act. Since 1964, U.S. employers have been required to provide equal treatment in
the terms and conditions of employment regardless of gender, race, color, creed, national
origin or religion.
Can an employer such as Babes and Booze or Hooters treat female employees
differently than male employees and still comply with federal "equal treatment"
requirements? The answer is: sometimes yes, sometimes no.
Page 1 of 4 Legal Gender Bending | Home Browser Title Tagline
5/29/2014 http://www.workforce.com/articles/print/legal-gender-bending
Sometimes yes
Newspaper and television commentators expressed consternation over a recent federal
appeals court decision that Harrahs Casino in Reno, Nevada, had the right to fire bartender
Darlene
Jespersen for refusing to wear makeup. Harrahs adopted a "Personal Best" grooming
policy requiring Harrahs employees to adhere to certain guidelines, including short hair and
neatly trimmed fingernails for men. Men were barred from wearing makeup. Harrahs female
bartenders and beverage servers had similar grooming requirements, but were required to
wear makeup.
Jespersen, a 21-year employee of Harrahs, refused to comply with the policy and
claimed that the differences in the policy for male and female beverage servers constituted
disparate-treatment sex discrimination in violation of Title VII. The 9th U.S. Circuit Court of
Appeals assessed the actual impact of Harrahs makeup/no makeup policy on both male
and female employees, weighed the cost and time necessary for employees of each sex to
comply with the policy and ultimately agreed with Harrahs approach.
The court noted simply that Jespersen failed to produce "some" evidence that the
makeup requirement placed a greater requirement on female bartenders than the
requirement that men maintain short haircuts and neatly trimmed nails. There was no
evidence that these burdens were greater for women than men, and the court ruled that
Harrahs policy was not a violation of Title VII since it did not discriminate because of
"immutable" or unchangeable characteristics, and because it imposed equal burdens on
both sexes. In my opinion, Jespersen lost because of a technicality--the judges thought she
needed more evidence to prove her case.
A similar case arose recently in Iowa. A male employee filed a lawsuit against his
employer claiming he was discriminated against on the basis of gender because his
employer told him he could not wear a stud in his ear. Female employees for the same
employer were allowed to wear studs or earrings. The court ruled that wearing an earring
stud was not an immutable characteristic--you could cover up the stud or take it out--and
that federal law did not prohibit employers from establishing personal grooming standards
that might treat males and females differently.
Page 2 of 4 Legal Gender Bending | Home Browser Title Tagline
5/29/2014 http://www.workforce.com/articles/print/legal-gender-bending
Sometimes no
A Michigan court of appeals, meanwhile, allowed the Michigan Department of Corrections
to hire only female security guards for a detention facility housing females because of the
states goals of security, safety, privacy and rehabilitation. But a federal court in Arizona
ruled that it was a violation of Title VII for Marriott International to refuse to hire a male
massage therapist merely because most customers requested female massage therapists.
The court found that Marriotts policy of assigning female massage therapists to females
and males to males was driven by customer preference, not by a public policy interest. And
the court reminded Marriott that the extra cost of hiring male therapists who might not be
used by customers did not justify its gender-based hiring.
In another case, a topless club in Houston tried to limit the number of black dancers at
the club in order to "keep a racial balance" among the clientele. The court said bluntly to the
defendant that such a practice was intentional racial discrimination and that dancers could
not be selected on the basis of race.
My favorite sex-based hiring cases are, of course, the Hooters cases. Hooters refused to
hire men and claimed the restaurant was providing "vicarious sexual recreation" as a way to
argue that female allure was a bona fide occupational qualification. The court noted that this
ploy might have worked except for Hooters advertisements that it was a "family" restaurant.
In one class action, Hooters agreed to pay $2 million to the males who were denied the
opportunity to serve as "Hooters Girls," paid $1.75 million in attorneys fees and was
ordered to create three gender-neutral positions. Hooters Girls are now assisted by
"Hooters Persons."
Lessons for employers
At all costs, avoid grooming standards that are different for men and women. If you must
impose a particular requirement, avoid standards for immutable or nonchangeable
characteristics. If your policy requires nonchangeable characteristics, you will run into
problems, or lawsuits, or both.
Page 3 of 4 Legal Gender Bending | Home Browser Title Tagline
5/29/2014 http://www.workforce.com/articles/print/legal-gender-bending
Keep your grooming standards as gender-neutral as possible. If there is a necessary
difference, treat the standard as if it is an accountants ledger in which the requirements for
males equal the requirements for females. Remember, these are disparate-treatment
lawsuits.
No differences can be based on race. Period.
If you are going to use gender as a bona fide occupational qualification, think of the
"qualification" as an essential function of the job--a topless female dancer must be female;
and a male performer would probably required to play the role of Michelangelos David.
Employers sometimes face liability for treating one gender differently than another. And
sometimes they dont. Like BTK, sometimes employers just get away with it--for a while.
The information contained in this article is intended to provide useful information on the
topic covered, but should not be construed as legal advice or a legal opinion. Also
remember that state laws may differ from the federal law.
Workforce Management, May 2005, pp. 12-14 -- Subscribe Now!
(http://www.workforce.com/subscribe)
Page 4 of 4 Legal Gender Bending | Home Browser Title Tagline
5/29/2014 http://www.workforce.com/articles/print/legal-gender-bending