Jottings By An Employer's Lawyer

Tuesday, December 28, 2004

Is That Bartender Wearing Makeup?

If you are at Harrah's and the bartender is female, the answer better be yes, if the bartender is male, the answer better be no. But the question decided today in Jespersen v. Harrah's Operating Company, Inc. (9th Cir. 12/28/04) [pdf] - - is that legal? Darlene Jespersen was a long tenured, and by all accounts excellent bartender for Harrah's who for many reasons chose not to wear make up. For many years that caused no problems, but in 2000 a new imaging program and her personal feelings collided. Ultimately, her refusal to wear makeup led to her discharge, a claim for sex discrimination and today's decision.

Over a vigorous dissent, the Court upheld Harrah's policy and Jespersen's discharge. The Court had to deal with two different arguments. First, its own test which permits different appearance standards for men and women, as long as they don't impose unequal burdens on the two sexes. Here the two parties had distinctly different views on how this test should be applied:
In doing so we must weigh the cost and time necessary for employees of each sex to comply with the policy. Harrah’s contends that the burden of the makeup requirement must be evaluated with reference to all of the requirements of the policy, including those that burden men only, such as the requirement that men maintain short haircuts and neatly trimmed nails. Jespersen contends that the only meaningful appearance standard against which the makeup requirement can be measured is the corresponding “no makeup” requirement for men.
The Court agreed with Harrah's approach and held that Jespersen's offer of "academic literature discussing the cost and time burdens of cosmetics" was no evidence of what was needed in this case, the burden on the male bartenders of complying with the grooming and dress policy vs. the burden of female bartenders of complying.

The second prong of Jespersen's attack was that the makeup requirement was based on a sexual stereotype which is prohibited by Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). The way around that for the Court, "In short, although we have applied the reasoning of Price Waterhouse to sexual harassment cases, we have not done so in the context of appearance and grooming standards cases, and we decline to do so here." And just in case there was any doubt about how the majority felt about the dissenting view on this point, "We thus disagree with the dissent’s assertion that 'Jespersen has articulated a classic case of Price Waterhouse discrimination. . . .' Dissent at 17474."

This was a widely publicized case and drew amicus briefs from the Lambda Legal Defense & Education Fund, the American Civil Liberties Union of Nevada, Northwest Women’s Law Center, California Women’s Law Center, The Gender Public Advocacy Coalition, the National Employment Lawyers Association, Alliance for Workers’ Rights, and The Legal Aid
Society — Employment Law Center on behalf of Jespersen and the Employment Law Equity, American Hotel & Lodging Association, and California Hotel & Lodging Association on behalf of Harrah's.

This case is unlikely to go quietly into the night. Look for en banc consideration and ultimately certiorari on this one. Two interesting choices for courts looking at this issue: do they take on what seems to be somewhat metaphysical arguments over the burdens of a policy on one sex versus another or do they venture into the treacherous waters of broadening the law of 'sexual stereotypes.' I can't imagine many judges see much appeal in either path.

It may take some time to get the answer. Unlike the 2nd Circuit which disposed of an FMLA claim 8 days after oral argument, see my post here, the case decided today was argued on December 3, 2003. Check back in 2006 for how this one finally turns out.

Update: It was affirmed, see posting on April 17, 2006, 9th Circuit Upholds Makeup Rule.


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