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Makeup Rules Not Considered Sexist

Michael Fox at Jottings by an Employer's Lawyer posts about a recent 9th Circuit en banc decision  affirming that a female employee's termination for refusal to wear makeup  was not discriminatory.  The court acknowledged that grooming codes could be discriminatory if unequally burdensome on one gender, but found that a rule requiring women to wear makeup did not pose an unequal burden.   Reasoned the court:

"We respect Jespersen's resolve to be true to herself and to the image that she wishes to project to the world. We cannot agree, however, that her objection to the makeup requirement, without more, can give rise to a claim of sex stereotyping under Title VII. If we were to do so, we would come perilously close to holding that every grooming, apparel, or appearance requirement that an individual finds personally offensive, or in conflict with his or her own self image, can create a triable issue of sex discrimination."

At the same time, two judges dissented, finding that  requiring makeup of women only is in fact a classic sexual stereotype:

"Women's faces, just like those of men, can be perfectly presentable without makeup; it is a cultural artifact that most women raised in the United States learn to put on -- and presumably enjoy wearing -- cosmetics. But cultural norms change; not so long ago a man wearing an earring was a gypsy, a pirate or an oddity. Today, a man wearing body piercing jewelry is hardly noticed. So, too, a large (and perhaps growing) number of women choose to present themselves to the world without makeup. I see no justification for forcing them to conform to Harrah's quaint notion of what a 'real woman' looks like."

Which side do you come out on?  And how would this decision apply to law firms, I wonder.

Posted by Carolyn Elefant on April 17, 2006 at 03:49 PM | Permalink | Comments (3) | TrackBack (0)


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