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

444 F.3d 1104 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 June 22, 2005. Filed April 14, 2006. Jennifer C. Pizer, Lambda Legal Defense and Education Fund, Inc., Los Angeles, CA, for the plaintiff-appellant. Kenneth J. McKenna, Kenneth James McKenna, Inc., Reno, NV, for the plaintiff-appellant. Patrick H. Hicks and Veronica Arechederra Hall, Littler Mendelson, P.C., Las Vegas, NV, for the defendant-appellee. Appeal from the United States District Court for the District of Nevada; Edward C. Reed, District Judge, Presiding. D.C. No. CV-01-00401-ECR. Before SCHROEDER, Chief Judge, PREGERSON, KOZINSKI, RYMER, SILVERMAN, GRABER, W. FLETCHER, TALLMAN, CLIFTON, CALLAHAN, and BEA, Circuit Judges. SCHROEDER, Chief Judge. 1 We took this sex discrimination case en banc in order to reaffirm our circuit law concerning appearance and grooming standards, and to clarify our evolving law of sex stereotyping claims. 2 The plaintiff, Darlene Jespersen, was terminated from her position as a bartender at the sports bar in Harrah's Reno casino not long after Harrah's…

We took this sex discrimination case en banc in order to reaffirm our circuit law concerning appearance and grooming standards, and to clarify our evolving law of sex stereotyping claims.

The plaintiff, Darlene Jespersen, was terminated from her position as a bartender at the sports bar in Harrah’s Reno casino not long after Harrah’s began to enforce its comprehensive uniform, appearance and grooming standards for all bartenders. The standards required all bartenders, men and women, to wear the same uniform of black pants and white shirts, a bow tie, and comfortable black *1106 shoes. The standards also included grooming requirements that differed to some extent for men and women, requiring women to wear some facial makeup and not permitting men to wear any. Jespersen refused to comply with the makeup requirement and was effectively terminated for that reason.

The district court granted summary judgment to Harrah’s on the ground that the appearance and grooming policies imposed equal burdens on both men and women bartenders because, while women were required to use makeup and men were forbidden to wear makeup, women were allowed to have long hair and men were required to have…

dissenting:

I agree with the majority that appearance standards and grooming policies may be subject to Title VII claims. I also agree with the majority that a Title VII plaintiff challenging appearance standards or grooming policies may “make out a prima facie case [by] establishing that the challenged employment action was either intentionally discriminatory or that it had a discriminatory effect on the basis of gender.” Maj. Op. at 1108 (emphasis added). In other words, I agree with the majority that a Title VII plaintiff may make out a prima facie case by showing that the challenged policy either was motivated in part “because of a sex stereotype,” Maj. Op. at 1111, or “creates an ‘unequal burden’ for the plaintiffs gender,” Maj. Op. at 1110. Finally, I agree with the majority that Jespersen failed to introduce sufficient evidence to establish that Harrah’s “Personal Best” program created an undue burden on Harrah’s female bartenders. 1 I part *1114 ways with the majority, however, inasmuch as I believe that the “Personal Best” program was part of a policy motivated by sex stereotyping and that Jespersen’s termination for failing to comply with the program’s requirements was…

dissenting:

I agree with Judge Pregerson and join his dissent — subject to one caveat: I believe that Jespersen also presented a triable issue of fact on the question of disparate burden.

The majority is right that “[t]he [makeup] requirements must be viewed in the context of the overall policy.” Maj. at 1112; see also id. at 1113. But I find it perfectly clear that Harrah’s overall grooming policy is substantially more burdensome for women than for men. Every requirement that forces men to spend time or money on their appearance has a corresponding requirement that is as, or more, burdensome for women: short hair v. “teased, curled, or styled” hair; clean trimmed nails v. nail length and color requirements; black leather shoes v. black leather shoes. See id. at 1107. The requirement that women spend time and money applying full facial makeup has no corresponding requirement for men, making the “overall policy” more burdensome for the former than for the latter. The only question is how much.

It is true that Jespersen failed to present evidence about what it costs to buy makeup and how long it takes to apply it. But is there any doubt that putting on makeup costs money and…