Magazine article Workforce Management

Legal Gender Bending

Magazine article Workforce Management

Legal Gender Bending

Article excerpt

Can an employer treat female employees differently than male employees and still comply with federal "equal treatment" requirements?

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.


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 hair-cuts 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. …

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