No Discrimination In Harrah's Bartender Case

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Harrah's Entertainment Inc.'s requirement that women bartenders wear makeup at its casinos does not amount to sex discrimination, the 9th U.S. Circuit Court of Appeals ruled Friday in a split decision.
Lawyers for Harrah's said the 7-4 ruling against Darlene
Jespersen - who was fired in 2000 for refusing to wear makeup after
21 years as a bartender at Harrah's in Reno - affirms the right of
employers to adopt reasonable dress and grooming standards.
But Jespersen's lawyers said the court has opened the door for
more anti-discrimination suits by outlining what must be proven to
establish sex-stereotyping through dress codes.
The appellate court in San Francisco ruled that Harrah's policy
was no more burdensome on women than on men partly because men were
required to cut their hair while women were not, and that while
women had to wear makeup, men were prohibited from doing so.
"This is not a case where the dress or appearance requirement
is intended to be sexually provocative and tending to stereotype
women as sex objects," Chief Judge Mary M. Schroeder wrote in the
majority opinion.
"There is no evidence of a stereotypical motivation on the part
of the employer," the decision said. "This case is essentially a
challenge to one small part of what is an overall apparel,
appearance and grooming policy that applies largely the same
requirements to both men and women."
Jespersen asked for the full court to hear the case after a
3-member panel of the court in 2004 upheld a similar ruling by a
federal judge in Reno in 2002.
The four dissenting judges said Friday the majority erred in
concluding that Jespersen had no basis for her lawsuit because she
failed to present evidence that applying makeup was more costly and
time-consuming than getting a hair cut.
"Is there any doubt that putting on makeup costs money and
takes time?" Judge Alex Kozinski wrote in one of two dissenting
opinions joined by Judges Susan Graber and William A. Fletcher.
"Harrah's policy requires women to apply face powder, blush,
mascara and lipstick. You don't need an expert witness to figure
out that such items don't grow on trees," Kozinski said.
"Even those of us who don't wear makeup know how long it can
take from the hundreds of hours we've spent over the years
frantically tapping our toes and pointing to our wrists," he said.
In a separate dissent, Judge Harry Pregerson said the policy
clearly "was motivated by sex stereotyping."
"Harrah's fired her because she did not comply with a grooming
policy that imposed a facial uniform (full makeup) on only female
bartenders," he wrote.
"The inescapable message is that women's undoctored faces
compare unfavorably to men's, not because of a physical difference
between men's and women's faces, but because of a cultural
assumption - and gender-based stereotype - that women's faces are
incomplete, unattractive or unprofessional without full makeup."
Schroeder said in the majority opinion that the makeup
requirement was different from other corporate rules that the court
had found to be illegal in the past, such as weight restrictions
airlines placed on female flight attendants as "part of an overall
program to create a sexual image for the airline."
"In contrast, this case involves an appearance policy that
applied to both male and female bartenders and was aimed at
creating a professional and very similar look for all of them,"
she wrote.
Patrick Hicks, a Las Vegas lawyer who represented Harrah's in
the case, said it was an important decision that confirms "there
was no evidence that Harrah's policy had either the intent nor the
impact of discriminating on the basis of sex."
"More importantly, the court affirmed an employer's right to
adopt reasonable dress and grooming standards," he said.
Ken McKenna, a Reno lawyer who represented Jespersen, said that
while she lost her case "it is a victory for women of the
"The majority opinion cops out by saying Darlene never
testified what the cost of the makeup is," McKenna said.
"But in the future, women are going to know to testify that
mascara costs $6 and blush costs $12 and they will present the
appropriate record," he said.
"She has kicked the door wide open for women in the future who
feel being forced to wear layers and layers of makeup is a sexual
Jennifer Pizer, a lawyer for the LAMBDA Legal Defense and
Education Fund in Los Angeles, said Jespersen is "a hero."
"It takes a lot of courage as well as a lot of guts to give up
one's job in protest of a really burdensome demeaning workplace
restriction," said Pizer, who helped represent her.
"What I hope we'll see is more employers thinking hard before
they impose sex-differentiated uniform or appearance