http://www.latimes.com/news/nationworld/nation/la-na-harrahs29dec29,0,7165 90.story?coll=la-home-nation
THE NATION Court Rules Bartender Was Justly Fired for Refusing to Wear Makeup An appeals panel decides the grooming policy of Harrah's casino asking servers to be 'appealing to the eye' is not gender bias. By Henry Weinstein Times Staff Writer
December 29, 2004
Harrah's casino in Reno had the right to fire a female bartender because she refused to wear makeup despite the fact that she had consistently high employment evaluations, a sharply divided panel of the U.S. 9th Circuit Court of Appeals ruled Tuesday.
Harrah's grooming policy that requires women to wear makeup requires men to have neatly trimmed hair that does not extend below the shirt collar and prohibits men from wearing makeup or having long fingernails.
The court ruled that the policy did not place a greater burden on women than on men and, therefore, was not a form of discrimination by sex.
The case was brought by Darlene Jespersen, now 49, who was hired by Harrah's as a dishwasher in 1979 and became a bartender the following year.
According to the court decision, Jespersen tried wearing makeup for a short period of time during the 1980s when doing so was voluntary at Harrah's. But she testified that doing so "made her feel sick, degraded, exposed and violated."
Additionally, the ruling noted, "Jespersen felt that wearing makeup actually interfered with her ability to be an effective bartender (which sometimes required her to deal with unruly, intoxicated guests) because it took away [her] credibility as an individual and as a person."
So Jespersen stopped wearing makeup. But in February 2000, Harrah's Entertainment Inc. implemented a "Beverage Department Image Transformation" program at 20 locations, including its casino in Reno.
The program's "Personal Best" standards required all beverage servers to be "well groomed, appealing to the eye, be firm and body toned, and be comfortable with maintaining this look." Female beverage servers were required to wear stockings and colored nail polish, and they were required to wear their hair "teased, curled or styled."
Jespersen agreed to adhere to the standards. Then, the company added the makeup policy and she balked. That summer she was fired, and she sued the following year.
When the case got to court, U.S. District Judge Edward C. Reed threw it out, saying that Harrah's had not violated federal civil rights law. The appeals court agreed in a 2-1 decision. The ruling applies in the nine Western states, including California, whose federal cases are under the 9th Circuit's jurisdiction. Legal experts said the ruling could affect a variety of workplaces, particularly in service industries.
Jespersen said she was "very disappointed" with the ruling. "Sex discrimination is a serious problem for women," she said. "When Harrah's came out with this Personal Best, program, if I had been a man it would not have affected me, and I would still be there working."
"Men come in clean and neat and presentable, and that's OK," but women are evaluated based on different physical attributes, she said.
Harrah's spokesman Gary Thompson said the company was pleased with the decision. The company had offered to rehire Jespersen and not require her to wear makeup, but she rejected the offer, he said.
Jespersen's attorney, Jennifer Pizer, said that offer had not included back pay and would not have allowed other women to be exempt from the makeup rule. Pizer said she would ask the 9th Circuit to rehear the case with a larger panel of judges.
Legally, the case centered on how to interpret a 1989 decision by the U.S. Supreme Court. In that case, the high court ruled that an accountant at Price Waterhouse, the accounting firm now known as PricewaterhouseCoopers, could proceed with a case alleging that the firm had discriminated against her by enforcing sexual stereotypes. Part of that case involved the woman's claim that supervisors discriminated against her because she did not wear makeup.
But this case was different, appeals Judge A. Wallace Tashima of Los Angeles wrote in the Harrah's decision. The Price Waterhouse case did not answer the question of whether a company could impose different appearance and grooming standards for men and women, Tashima wrote. Federal civil rights laws should not be interpreted to ban such a requirement, he said.
Tashima was joined in the decision by Judge Barry G. Silverman of Phoenix. Judge Sidney R. Thomas, of Billings, Mont., disagreed. The casino's policy required female employees to "conform to a sex stereotype" by wearing makeup, he said.
Moreover, he added, Harrah's policy "is far more stringent than simply asking female employees to wear some makeup. The policy essentially requires women to wear a uniform of makeup including at least mascara, blush, lipstick and foundation."
He said that the company used an image consultant who photographed the women after they put on makeup and that the photograph was used as a daily standard to measure whether the female employee's appearance was up to snuff.