Darlene Jespersen v. Harrah's Operating Company, Inc.

392 F.3d 1076 Darlene JESPERSEN, Plaintiff-Appellant, v. HARRAH'S OPERATING COMPANY, INC., Defendant-Appellee. No. 03-15045. United States Court of Appeals, Ninth Circuit. Argued and Submitted December 3, 2003. Filed December 28, 2004. Jennifer C. Pizer, Lambda Legal Defense & Education Fund, Inc., Los Angeles, CA, for the plaintiff-appellant. Veronica Arechederra Hall, Littler Mendelson, Las Vegas, NV, for the defendant-appellee. Allen Lichtenstein, American Civil Liberties Union of Nevada, Las Vegas, NV, for amici curiae American Civil Liberties Union of Nevada, Northwest Women's Law Center, California Women's Law Center, and The Gender Public Advocacy Coalition. Jeffrey W. Erdman, Bennett & Erdman, Los Angeles, CA, for amici curiae National Employment Lawyers Association, Alliance for Workers' Rights, and The Legal Aid Society — Employment Law Center. Joseph E. Schuler, Littler Mendelson, Washington, D.C., for amici curiae Council for Employment Law Equity, American Hotel & Lodging Association, and California Hotel & Lodging Association. Appeal from the United States District Court for the District of Nevada; Edward C. Reed, Jr., District Judge, Presiding.…

Plaintiff Darlene Jespersen, a bartender at Harrah’s Casino in Reno, Nevada, brought this Title VII action alleging that her employer’s policy requiring that certain female employees wear makeup discriminates against her on the basis of sex. The district court granted summary judgment for Harrah’s, holding that its policy did not constitute sex discrimination because it imposed equal burdens on both sexes. We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we affirm.

I.

The following facts are undisputed. Darlene Jespersen was a bartender at the sports bar in Harrah’s Casino in Reno, Nevada, for nearly 20 years. She was an outstanding employee. Over the years, Jespersen’s supervisors commented that she was “highly effective,” that her attitude was “very positive,” and that she made a “positive impression” on Harrah’s guests. Harrah’s customers repeatedly praised Jespersen on employee feedback forms, writing that Jespersen’s excellent service and good attitude enhanced their experience at the sports bar and encouraged them to come back.

Throughout the 1980s and '90s Harrah’s encouraged its female beverage servers to wear makeup, but wearing makeup was not a formal…

dissenting.

I respectfully dissent.

Harrah’s required Darlene Jespersen to wear makeup to work. She refused because the cost — measured in time, money, and personal dignity — was too high. Har-rah’s fired her. The majority holds that Jespersen failed to raise a triable issue of fact as to whether Harrah’s policy imposes unequal burdens on men and women. In fact, Jespersen easily satisfied her burden. A reasonable factfinder could determine that Harrah’s acted because of Jespersen’s sex under not just one theory, but two. First, Harrah’s fired Jespersen because of her failure to conform to sex stereotypes, which is discrimination based on sex and is therefore impermissible under Title VII. Second, Jespersen 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.

I

Darlene Jespersen was fired from her position as a bartender in a sports bar at Harrah’s Casino. There is no question as to why she was fired: because she would not or could not…