Monday, May 16, 2005
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Ninth Circuit to Rule en Banc on Whether Requiring Makeup for Female Workers Violates Anti-Bias Law
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals has granted en back review of a ruling that an employer’s policy of requiring female bartenders to wear makeup does not constitute sex discrimination.
In a brief order signed by Chief Judge Mary M. Schroeder, the court reported that a majority of its active judges had agreed to have the case heard by an 11-judge limited en banc court. The panel ruling in Jespersen v. Harrah’s Operating Company, Inc., 03-15045 was filed Dec. 28 of last year.
That ruling, by a divided panel, held that the “personal best” grooming policy adopted by the defendant, the parent company of the Harrah’s casino-hotel chain, did not discriminate against women because it set similar grooming standards for both sexes.
Under the policy, male bartenders were required to keep their hair short and nails trimmed and prohibited from wearing makeup; women were required to wear makeup, applied consistently according to a photograph in the possession of a supervisor, as well as lipstick. The policy has been modified since Darlene Jespersen sued, although women are still required to wear makeup.
Jespersen was fired in August 2000 for refusing to wear makeup. The company did not dispute her contention that she had performed her job at a high level of performance for 21 years.
The company made a settlement offer, which it said would have allowed Jespersen to work at any of a number of positions within the company to which the makeup retirement did not apply and which would pay at least as much as her former position.
She said, on the Web site of a labor organization that is supporting her, that she turned the offer down because it did not include back pay and did not assure that the issue of wearing makeup would not come up again.
Senior Judge A. Wallace Tashima, writing for the panel, said the policy was lawful because it imposed similar burdens on members of both sexes.
Jespersen, he said, failed to present evidence that the time and expense of putting on makeup was greater than the burdens imposed on her male colleagues.
Judge Barry G. Silverman concurred in the opinion, but Judge Sidney Thomas dissented.
The plaintiff, Thomas argued, “easily satisfied her burden” of establishing a triable issue of fact with regard to whether the grooming policy imposed unequal burdens on women. A reasonable factfinder, he said, could find that “Harrah’s fired Jespersen because of her failure to conform to sex stereotypes, which is discrimination based on sex and is therefore impermissible.,” or that the policy required greater expenditures of time and money by women than by men.
Jespersen was represented on appeal by Jennifer C. Pizer of Lambda Legal Defense & Education Fund, Inc.; Harrah’s by Veronica Hall of the Las Vegas office of Littler Mendelson.
Los Angeles attorney Jeffrey Erdman authored an amicus brief on behalf of workers’ rights groups; Littler Mendelson filed one on behalf of employer organizations. Jespersen also drew support from the ACLU and women’s groups.
The case is Jespersen v. Harrah’s Operating Company, Inc., 03-15045.
Copyright 2005, Metropolitan News Company