It is not gender discrimination when both genders are 'equally burdened'

by on December 12, 2008 · 0 Comment POSTED IN: HR Info Center

You can have separate dress codes for men & women

Here’s the latest on dress codes: If you need to, you can have gender-specific appearance policies – just as long as the policy doesn’t “burden” one gender over the other causing gender discrimination.

That’s the good news. The bad news is what constitutes an “undue burden” on one gender is still up in the air.

Is makeup, shaving the same
In a recent gender discrimination case, a 10-judge panel on a federal appeals court tasked itself with the following question: Is requiring women to wear makeup the same burden as requiring men to shave?

The decision came down 7-3 in favor of “yes.” But here’s the kicker: The decision hinged on a technicality – that the plaintiff hadn’t presented enough evidence that putting on makeup is an unequal burden, both in time and cost.

That’s court speak for, “A better plaintiff’s lawyer may have meant the decision went the other way.”

What you can do
If you don’t want 10-judge federal appeals panels reviewing your company’s grooming policy, we’d recommend the following

    Consider time: Will both genders have to spend about the same amount of time for dress and grooming to meet the policy requirement?
    Consider expense: Will the costs be about the same to both genders?
    Think about the bigger issue: Even one federal judge felt compelled to note this management gaffe: A Nevada casino fired a bartender who had earned “accolades from her customers, over what, in the end, is a trivial matter.”

Cite: Jespersen v. Harrah’s, No. 03-15045, 9th Cir., 4/14/06

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