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April 21, 2005

Appearance-Based Discrimination Suits Are On The Rise

Appearance-Based Discrimination Suits Are on the Rise
Tresa Baldas
The National Law Journal
04-20-2005

Companies that regulate a worker's appearance -- from banning tattoos to mandating makeup -- are facing a growing risk of lawsuits, employment lawyers assert.

Appearance-based discrimination lawsuits are being filed more frequently, involving everything from eyebrow rings to sexy clothing, employment attorneys say.

"It's not the IBM loose white shirt world anymore," said attorney Henry Perlowski, who chairs the employment law practice group at Atlanta's Arnall Golden Gregory. "I think that as more and more people look different and are entering the work force, the tensions between culture and policy are going to escalate."

A cultural shift is taking place in which managers are struggling to control a younger generation of workers who are more culturally and racially diverse than before -- and more resistant to rules regulating their personal appearance.

Attorneys note that in recent years there's been a rash of image-based lawsuits, including:

In Nevada, a female bartender is challenging a recent court ruling that upheld a casino's right to fire her for refusing to wear makeup.

In Massachusetts, a former Costco employee is challenging the retailer's prohibition on facial jewelry.

Most recently, a jury on April 4 ruled against a Harvard University librarian, Desiree Goodwin, who alleged that she was denied promotions because she was too attractive and did not fit the image of a librarian. Goodwin v. Harvard College, No. 03-11797JLT (D. Mass.).

"Our claim was that she was told that she was considered to be just a pretty girl who wore sexy outfits, and that's why she wasn't getting promoted," said the attorney for the librarian, Jonathan Margolis of Rodgers, Powers & Schwartz in Boston. "This was a case where she didn't fit the stereotype of the librarian." Margolis said he has not yet decided whether to appeal.

Harvard's lawyer, Judith Malone of Boston's Palmer & Dodge, could not be reached for comment.

Jennifer Pizer, senior counsel with Lambda Legal Defense and Education Fund in Los Angeles, is representing Darlene Jespersen in an ongoing sex-discrimination case against Harrah's Entertainment Inc. over a "personal best" policy that required women to wear makeup. Jespersen v. Harrah's, 392 F.3d 1076 (9th Cir. 2004).

Jespersen, a 20-year employee and bartender at Harrah's, was fired in August 2000 for refusing to comply.

On Dec. 28, 2004, a three-judge panel of the 9th U.S. Circuit Court of Appeals upheld Harrah's "personal best" policy, finding that the plaintiff failed to prove that the policy imposed unequal burdens on male and female employees. The policy required male bartenders to keep their hair short and their nails trimmed and to appear neatly groomed.

Jespersen has requested a rehearing by the entire court. "Our argument here is that the policy is more burdensome on women," Pizer said.

Harrah's spokesman David Strow noted that Harrah's personal-best standards no longer exist, and have been replaced by modified standards that require makeup to be tasteful and not excessive but not mandatory. Strow stressed that Harrah's did not change its policy because of Jespersen's lawsuit.
The courts have long upheld grooming policies as long as they're rationally related to business objectives, noted employment law specialist Lynn Kappelman, who is defending Costco in a suit involving an employee's fight to wear an eyebrow ring to work. Cloutier v. Costco, 390 F.3d 126 (1st Cir. 2004).

On Dec. 1, 2004, the 1st Circuit upheld Costco's firing of a woman who refused to remove or cover an eyebrow ring on religious grounds. The court held that Costco had a legitimate interest in mandating a professional appearance by workers and held that it would have created an undue burden for Costco to have accommodated the employee.

The plaintiff, Kimberly Cloutier, claimed that one of the tenets of her church, the Church of Body Modification, was to wear piercing. Her lawyer, Mike O. Shea of the Law Office of Michael O. Shea in Wilbraham, Mass., declined comment, saying only that he has filed for certiorari with the U.S. Supreme Court. Kappelman, of Boston's Seyfarth Shaw, would not comment on the suit.

Posted on April 21, 2005 at 10:33 AM | Permalink

Comments

I find this interesting. Back in the late 1980's, my sister was fired from her job as the head of publicity for a large non-profit agency in Texas. She was fired for refusing to shave her legs. She sued them for sex discrimination and won!

Posted by: lee at Apr 22, 2005 2:42:30 AM

Harvard has Counter-sued Desiree for "legal costs":

http://blogs.law.harvard.edu/fensterm/2005/06/30#a96

-r

Posted by: randy.f at Jun 30, 2005 8:13:49 PM