Female Employee Can Be Fired for Not Wearing Makeup

Based on reasoning that may be greeted with skepticism by many women, a federal appeals court in San Francisco has ruled that it was legal for Harrah's Casino to fire a female bartender for refusing to wear makeup.

The all-male panel held, in a 2-1 split decision, that there was no evidence Harrah's makeup requirement imposed an unequal burden on male and female employees. Therefore, the casino's gender-specific "appearance standards" did not discriminate against women, the panel said.

This case has created a stir nationwide, causing many employers to review their own "appearance standards" in anticipation of the ruling. Both parties found support from numerous friends of the court, including the American Civil Liberties Union of Nevada, Northwest Women's Law Center and California Women's Law Center for the former bartender. On Harrah's side were amici American Hotel & Lodging Association and the California Hotel & Lodging Association.

Darlene Jespersen, who worked successfully as a bartender at Harrah's in Reno, Nev., for 21 years before she was fired, refused to comply with Harrah's policy requiring women to wear a "uniform" of makeup that included at least mascara, blush, lipstick and foundation.

When the "personal best" policy was implemented in February 2000, the employees met with an "image consultant," were given a makeover and were photographed. The female employees were held accountable for being not only neatly dressed, but "properly made up" as illustrated by the "after" photograph, according to court records. Employees were required to sign a pledge agreeing to the plan as a condition of employment.

Jespersen, who said she had never worn makeup, was fired for not signing the pledge and for refusing to wear makeup while working.

She filed suit in the U.S. District Court for the District of Nevada under Title VII of the Civil Rights Act of 1964, alleging retaliation, disparate treatment and disparate impact in violation of Title VII and various Nevada state law claims.

Although the District Court dismissed all of Jespersen's claims in December 2002, she appealed only the dismissal of her disparate-treatment claim.

The U.S. Court of Appeals for the 9th Circuit affirmed in a majority opinion by Judge A. Wallace Tashima.

Judge Tashima first noted that the court previously held that grooming and appearance standards that apply differently to men and women do not constitute discrimination on the basis of gender. The reasoning was that Congress intended Title VII to apply only to discrimination based on "immutable characteristics" associated with an employee's gender.

However, the court's later cases have recognized that the imposition of more stringent appearance standards on one gender than the other amounts to gender discrimination even if the standards regulate only "mutable" characteristics such as weight, Judge Tashima emphasized.

Evaluating Harrah's "personal best" policy required the court to apply the "unequal-burdens" test to weigh the costs and time necessary for employees of each gender to comply with the standards.

However, the majority found that Jespersen failed to present evidence concerning the cost and time burdens that must be borne by female bartenders but not male bartenders.

Because there was no evidence from which the majority could assess the burdens of the policy on male bartenders either, Jespersen's claim failed, the majority concluded.

The panel also rejected Jespersen's argument that the makeup requirement should be invalidated because it runs afoul of the U.S. Supreme Court's decision in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). In that case, the justices held that discrimination against an employee for her failure to conform to a traditional, feminine gender stereotype was gender discrimination under Title VII.

The 9th Circuit explained that it adopted the unequal-burdens test for determining if appearance standards violated Title VII in a decision that was made after Price Waterhouse. Therefore, under that test, Jespersen's failed to meet her burden of showing that Harrah's gender-differentiated appearance standards violated Title VII, Judge Tashima said.

Judge Sidney Thomas dissented, taking issue with the majority's conclusion that the plaintiff raised no issue of fact concerning the reason she was fired. He said that a reasonable fact finder could have found that the plaintiff was fired because she failed to conform to gender stereotypes, and there was an issue of fact with respect to the "unequal-burdens" test here.

"[The plaintiff] created a triable issue of fact as to whether the policy imposed unequal burdens on men and women, because the policy imposes a requirement on women that is not only time-consuming and expensive, but burdensome for its requirement that women conform to outdated and impermissible sex stereotypes," Judge Thomas wrote.

Jespersen is represented by Jennifer Pizer of the Lambda Legal Defense and Education Fund's Los Angeles office.Counsel for Harrah's is Veronica Arechederra Hall of Littler Mendelson in Las Vegas, Nev.