Ninth Circuit Holds that Casino's Rule Requiring Female Bartender to Wear Full Makeup Is Not Sex Discrimination

The U.S. Court of Appeals for the Ninth Circuit recently decided that a good-grooming rule issued by Harrah's Casino to its employees, which requires female bartenders to wear makeup, does not violate Title VII's prohibition on sex discrimination. Jespersen v. Harrah's Operating Co., 2004 U.S. App. LEXIS 26892 (9th Cir. Dec. 28, 2004). The court ruled that employers are permitted to adopt different appearance standards based on sex as long as the rules do not create unequal burdens for men and women, and found that in this case the female plaintiff failed to show that a makeup requirement for women imposed a burden in excess of that associated with normal good-grooming standards.

Darlene Jespersen worked as a bartender at Harrah's Casino in Reno, Nevada, for nearly twenty years. Her performance evaluations rated her as an outstanding employee who made a positive impression on casino guests. During the 1980's and 1990's, Harrah's encouraged but did not require its female beverage servers to wear makeup. Jespersen tried wearing makeup for a short time in the 1980's, but felt that wearing makeup "forced her to be feminine" and to become "dolled up" like a sexual object. She stopped wearing makeup after a few weeks because, in her view, doing so was so harmful to her dignity and her effectiveness behind the bar that she could not do her job. Harrah's did not object to Jespersen's choice not to wear makeup at that time, and she continued to receive positive performance reviews for over a decade.

In February 2000, Harrah's implemented a program called "Personal Best" for its employees in guest services positions, including the bartenders at the Reno casino. The Personal Best program imposed appearance standards for all employees who had guest contact, including heightened standards for beverage servers. All beverage servers of both sexes were required to be "well groomed, appealing to the eye, be firm and body toned, and be comfortable with maintaining this look while wearing the specified uniform." In addition, female beverage servers were required to wear hosiery and colored nail polish, and were required to wear their hair "teased, curled, or styled." Male beverage servers were prohibited from wearing makeup or colored nail polish, and were required to maintain short haircuts and neatly trimmed fingernails.

To enforce these standards, Harrah's required employees to attend a "Personal Best Image Training" session and took portrait and full-body photographs of each employee, which supervisors used as an "appearance measurement tool" to hold employees accountable. Jespersen acknowledged receipt of the policy and committed to adhere to the appearance standards for her position in March 2000. Shortly afterward, the "Personal Best" standards were amended to require all female beverage servers, including bartenders, to wear makeup. Specifically, the policy required that "make up (foundation/concealer and/or face powder, as well as blush and mascara) must be worn and applied neatly in complimentary colors" and "lip color must be worn at all times". Jespersen refused to comply with the amended policy requiring makeup, and was terminated after failing to apply for another position that did not require makeup to be worn.

Jespersen sued Harrah's for sex discrimination under Title VII of the Civil Rights Act of 1964. She asserted two theories: (1) the "unequal burdens" imposed on men and women by the "Personal Best" standards constituted disparate treatment based on sex; and (2) an employer may not force its employees to conform to the sex stereotype associated with their gender as a condition of employment. The majority rejected these arguments and affirmed the trial court's decision granting summary judgment to the employer.

As to Jespersen's first argument, the court acknowledged its prior rulings that the imposition of more stringent appearance standards based on gender can constitute sex discrimination (for example, holding female flight attendants to stricter weight requirements than male flight attendants). However, the court found that Jespersen had not shown that the burdens imposed on women by Harrah's makeup requirement were greater than those associated with the burdens the "Personal Best" standard imposed on men, nor that the burden of wearing makeup generally exceeded that associated with "ordinary good-grooming standards" for women. (All three of the Ninth Circuit judges on the panel hearing this case were men.)

The majority also rejected Jespersen's second argument that requiring female employees to wear makeup forced them to conform to commonly-accepted gender stereotypes associated with women, and that under Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), the leading Supreme Court decision addressing so-called "mixed motive" discrimination cases, such a policy was unlawful. The majority noted that the Ninth Circuit had not previously applied the Price Waterhouse standard to grooming and appearance standards cases, despite having an opportunity to do so.

The dissenting member of the panel, opined that Harrah's violated Title VII's prohibition against sex discrimination both under the "unequal burdens" test and under Price Waterhouse's gender stereotyping theory. The dissent noted that under the "Personal Best" policy, Jespersen was required to wear makeup and thus conform to a sex stereotype. When she refused, Harrah's fired her, and thus took an adverse employment action against her "based on sex." According to the dissenting judge, Harrah's decision to fire Jespersen because she refused to wear makeup -- although she excelled at her job -- was factually indistinguishable from the facts presented in the Price Waterhouse case, where the employer decided not to elevate the plaintiff to partnership because she was too "macho," brusque and aggressive, and did not wear makeup nor dress or act in a feminine manner.

With respect to Jespersen's other theory, that the makeup requirement imposed an unequal burden on women that was not imposed on men, the dissent found that Jespersen had raised a triable issue of material fact sufficient to defeat summary judgment. The makeup standard imposed a rule applicable to women, with no counterpart applicable to men, and imposed sex-stereotyping burdens on women in addition to time and financial burdens, none of which fell on the men.

The decision in Jespersen applies directly to all employers in the nine western states comprising the Ninth Circuit. However, California employers should also be aware that the California Fair Employment and Housing Act ("FEHA") also limits an employer's right to impose physical appearance, grooming or dress standards on employees. If the standard discriminates on the basis of sex and "significantly burdens" the individual in his or her employment, it is unlawful. 2 Cal. Code Regs. § § 7287.6(c); 7291.1(f)(2). Dress standards and requirements for personal appearance must be flexible enough to take into account religious practices. 2 Cal. Code Regs. § 7293.3(c)(2). Finally, it is an unlawful employment practice under the FEHA for an employer to prohibit an employee from wearing pants on account of the employee's sex, although employers can require employees to wear uniforms or to wear a costume while portraying a specific character or dramatic role. Cal. Gov't Code § 12947.5.

UPDATE: On May 13, 2005, the Ninth Circuit agreed to rehear the case en banc and on April 14, 2006 the full court, by a 7-4 vote, affirmed the dismissal of the plaintiff's claim. The court found "no evidence to establish that complying with the . . . standards caused burdens to fall unequally on men or women and . . . no evidence to suggest Harrah's motivation was to stereotype the women bartenders." While finding that the plaintiff had failed to establish a claim under Title VII, the court emphasized that its ruling did not suggest that sex-based grooming and appearance standards could never give rise to a valid Title VII claim. Accordingly, employers considering the adoption of such standards should continue to proceed with caution.