Academic journal article Labor Law Journal

Jespersen V. Harrah's Operating Co: Ninth Circuit Rejects Title VII Sex Discrimination Challenge to Employee Appearance Policy

Academic journal article Labor Law Journal

Jespersen V. Harrah's Operating Co: Ninth Circuit Rejects Title VII Sex Discrimination Challenge to Employee Appearance Policy

Article excerpt

For twenty years, Darlene Jespersen tended bar at Harrah's Reno casino. By all accounts she was a competent, popular employee. In 2000, Harrah's launched a Personal Best employee appearance program which, among other things, required women bartenders to wear makeup. Thinking this was degrading, Jespersen refused to comply and lost her job. She then sued Harrah's for sex discrimination under Title VII of the 1964 Civil Right Act,1 arguing that the makeup policy imposed an unequal burden on women and reflected a stereotypical view of how they should look. In Jespersen v. Harrah's Operating Co.,2 the Ninth Circuit Court of Appeals, sitting en banc,3 held 7-4 that Harrah's was entitled to summary judgment on both claims.

Believing that employers should be able to require employees to maintain a professional image, courts have generally taken a deferential approach to appearance policies, even those with sex-differentiated requirements. Before Jespersen was decided, the only basis for challenging such policies was that they imposed an unequal burden on one sex; in Jespersen, the court rejected this argument on the grounds that the plaintiff offered no proof that the makeup policy did this and that this was not subject to judicial notice. The court also rejected the sex stereotyping theory, but in so doing it became the first federal appeals court to hold that the theory could afford a basis to contest an appearance policy given different facts. As a result, employees now have, at least in theory, two avenues through which to attack such policies under Title VII.

This article focuses on Jespersen. It reviews the legislative history of the inclusion of sex in Title VII and how the meaning of the word has changed since the law was enacted. It discusses prior cases involving the unequal burden and sex stereotyping theories of sex discrimination. It then analyzes how the Jespersen court dealt with those claims and what this may signify for the future. The article concludes that despite the fact that the court said that a plaintiff could rely on either theory to challenge an appearance policy, it appears from what the court did in the case that it will be difficult for future plaintiffs to win under either theory.

I. BACKGROUND: HARRAH'S PERSONAL BEST POLICY

As amended in 2000, the Personal Best policy provided in relevant part:

All Beverage Service Personnel, in addition to being friendly, polite, courteous, and responsive to our customer's [sic] needs, must possess the ability to physically perform the essential factors of the job as set forth in the standard job descriptions. They must be well groomed, appealing to the eye, be firm and body toned, and be comfortable with maintaining this look while wearing the specified uniform. Additional factors to be considered include, but are not limited to, hair styles, overall body contour, and degree of comfort the employee projects while wearing the uniform.

Beverage Bartenders and Barbacks will adhere to these additional guidelines:

Overall Guidelines (applied equally to male/female):

* Appearance: Must maintain Personal Best image portrayed at time of hire.

* Jewelry, if issued, must be worn. Otherwise, tasteful and simple jewelry is permitted; no large chokers, chains, or bracelets.

* No faddish hairstyles or unnatural colors are permitted.

Males:

* Hair must not extend below top of shirt collar. Ponytails are prohibited.

* Hands and fingernails must be clean and nails neatly trimmed at all times. No colored polish is permitted.

* Eye and facial makeup is not permitted.

* Shoes will be solid black leather or leather type with rubber (non skid) soles.

Females:

* Hair must be teased, curled, or styled every day you work. Hair must be worn down at all times, no exceptions.

* Stockings are to be made of nude or natural color consistent with employee's skin tone. No runs.

* Nail polish can be clear, white, pink or red color only. …

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