Wednesday, Dec. 29, 2004 | 10:58 a.m.
A federal appeals court ruled Tuesday that a Nevada casino company could impose makeup requirements on its female bartenders without violating U.S. sex discrimination laws.
The U.S. 9th Circuit Court of Appeals, in a 2-1 decision, said Harrah's Entertainment Inc. could impose appearance standards on its employees, including bartender Darlene Jespersen who was fired in Reno in 2000 for failing to follow a grooming policy for beverage servers.
Ken McKenna, a Reno attorney for Jespersen, said his client intends to push for the case to be heard by the full panel of Appeals court judges. Tuesday's decision was rendered by a three-judge panel of the 9th Circuit.
"This is not the end of the line," he said.
The appeals court upheld the decision of U.S. District Judge Edward Reed of Reno who ruled the grooming policies of Harrah's "did not constitute sex discrimination because it imposed equal burdens on both sexes."
Jespersen said she was "very disappointed" and felt it was unfair that she "could not get her day in court," by getting to trial.
Jespersen worked as a bartender at the sports bar at Harrah's in Reno for nearly 20 years. In February 2002, Harrah's imposed a "image transformation" program at its 20 casinos.
Among the requirements for female beverage servers was that makeup must be worn, including mascara, blush, lipstick and foundation. Jespersen objected and was given 30 days to apply for another job that did not require makeup. She did not apply and was fired.
Jespersen filed suit in 2001 and Judge Reed granted a pre-trial summary judgment in favor of Harrah's.
Judge A. Wallace Tashima, who wrote the majority decision, said, "We have previously held that grooming and appearance standards that apply differently to women and men do not constitute discrimination on the basis of sex."
In this case, Harrah's required that the hair of male beverage servers could not extend below the top of the shirt collar and ponytails were prohibited. The company also said fingernails must be clean and trimmed and no colored polish is permitted. Makeup also was forbidden for men. The policy for women, in addition to makeup, was that the hair must be "teased, curled or styled" every day and must be worn down at all times. Women were also required to wear stockings of a nude or natural color, and certain colors of nail polish, with "no exotic nail art or length." "Although employers are free to adopt different appearance standards for each sex, they may not adopt standards that impose a greater burden on one sex than the other," Tashima wrote.
Jespersen maintained the makeup requirement imposed a bigger burden on women because cosmetics can cost hundreds of dollars per year and putting on the makeup requires significant time.
The court said there was no evidence in the record to support that contention or that the burdens associated with the makeup requirement were greater than the burdens imposed on male bartenders. The court also said Jespersen also did not present any evidence that she or any other employee has been sexually harassed as a result of the Harrah's policy. But Judge Sidney Thomas, who wrote the dissenting opinion, said Jespersen should be allowed to present her case to a jury and that Harrah's enforced sexual stereotypes through grooming standards.
"A reasonable factfinder could conclude that the Harrah's makeup requirement imposes an unequal burden on women, that Jespersen was fired for failure to conform to a sex stereotype or both."
Thomas said a "reasonable jury" could conclude that having to wear makeup and style one's hair was more of a burden than having to keep hair and fingernails short, as was required of men.
Besides imposing burdens of time and money, Thomas said the Harrah's grooming policy enforces sexual stereotypes.
"Jespersen testified very compellingly to the burdens she personally felt in complying with the makeup policy, explaining that it required her to conform with a feminine stereotype that she felt had nothing to do with making drinks," he wrote.
Jespersen said, "For 21 years I didn't wear makeup." When she tried it, she said, it was demeaning. "I got fired over my face."
"Sex discrimination is a serious problem. We're not judged on our job performance," she said.
Harrah's spokesman Gary Thompson said the company was "pleased" with the decision.
"We were confident based on case law from other jurisdictions and the 9th Circuit jurisdiction that the law was on our side," Thompson said. "Employers have traditionally been afforded the right to impose certain appearance standards on employees, particularly employees who are dealing regularly with the public."
After she was fired, Harrah's offered Jespersen her bartending job back but she refused, choosing instead to pursue the lawsuit.
McKenna said Jespersen feared being set up for future dismissal and that Harrah's was trying to head off a suit.
"After being a 20-plus year employee with an outstanding record they totally disenchanted her by firing her over something as silly as their new makeup policy," he said. "It's an absurdity to pretend that they tried to offer her her job back out of some kind of compassion."
The case has become a personal and social crusade of sorts for Jespersen, who is now working outside of the gaming industry in Reno, he said.
McKenna called the majority opinion "antiquated," saying it didn't reflect revised case law on sex discrimination.
"Sometimes it's just the luck of the draw," he said. "We really expect that if the case was heard en banc that we would prevail."
Lambda Legal, a national organization focused on issues important to gays and lesbians, assisted Jespersen with her appeal.
In a statement, the organization said federal civil rights laws require that women be protected from "burdensome" sex stereotypes.
"Today's decision makes these protections hollow because it says women -- including our client Darlene Jespersen -- cannot even seek fairness with a day in court to explain how sex-based employment rules impact them in real life." About 10 agencies filed friend of the court briefs in this case, including the American Civil Liberties Union of Nevada, the Alliance for Workers Rights in Reno an the American Hotel & Lodging Association.
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