Tuesday, May 10, 2005

A Look at Workplace Gender Discrimination Cases

Legal Gender Bending | workforce.com

Can an employer treat female employees differently than male employees and still comply with federal "equal treatment" requirements? That's the question that Workforce Management recently explored using facinating case studies as examples.

There was Darlene, the bartender who worked at Harrah's Casino in Reno, Nevada for over 20 years who was fired for refusing to wear makeup. Darlene, who was in violation of Harrah's "Personal Best" grooming policy. The policy which outlined grooming requirements for both men and women, required women to wear makeup.

Jespersen 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 another case, restaurant chain Hooters, famous for their hot wing slinging "Hooters Girls" were brought up on discrimination charges for refusing to hire men. The outcome of the case changed the face of Hooters forever.

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."

Employers must remember that if they hire or fire based on gender requirements, it must be because gender effects an essential job responsibility. Gender discrimination can be very costly, and can damage an organizations' reputation too. Read the entire article here.

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