Legal Gender Bending

By Alan Rupe

Apr. 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.

    BTK’s capture dominated the local news, edging out the front-page story on the opening of Babes and Booze, a bar in Wichita’s 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.

Sometimes yes
Newspaper and television commentators expressed consternation over a recent federal appeals court decision that Harrah’s Casino in Reno, Nevada, had the right to fire bartender Darlene

    Jespersen for refusing to wear makeup. Harrah’s adopted a “Personal Best” grooming policy requiring Harrah’s employees to adhere to certain guidelines, including short hair and neatly trimmed fingernails for men. Men were barred from wearing makeup. Harrah’s female bartenders and beverage servers had similar grooming requirements, but were required to wear makeup.

    Jespersen, a 21-year employee of Harrah’s, 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 Harrah’s 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 Harrah’s 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 Harrah’s 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.

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 state’s 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 Marriott’s 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 Hooter’s 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.

    Keep your grooming standards as gender-neutral as possible. If there is a necessary difference, treat the standard as if it is an accountant’s 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 Michelangelo’s David.

    Employers sometimes face liability for treating one gender differently than another. And sometimes they don’t. 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. 12-14Subscribe Now!

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