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En Banc Ninth Circuit Panel Upholds Employer’s Policy Requiring That Female WorkersWear Makeup
By a MetNews Staff Writer
An employer’s policy of requiring female bartenders to wear makeup does not constitute sex discrimination, the Ninth U.S. Circuit Court of Appeals ruled Friday.
In a 7-4 en banc decision, the court reached the same conclusion as the divided panel that decided Jespersen v. Harrah’s Operating Company, Inc., 03-15045 in December 2004.
Chief Judge Mary M. Schroeder, writing for the court, said 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 and did not perpetuate sexual stereotypes.
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 requirement did not apply and which would pay at least as much as her former position.
She turned the offer down, she said on the Web site of a labor organization that is supporting her, because it did not include back pay and did not assure that the issue of wearing makeup would not come up again.
Schroeder was joined by Judges Pamela Ann Rymer, Barry G. Silverman, Richard C. Tallman, Richard R. Clifton, Consuelo M. Callahan, and Carlos T. Bea. Judges Harry Pregerson and Alex Kozinski authored dissenting opinions, which were joined by Judges Susan P. Graber and William A. Fletcher.
Schroeder rejected the contention that the policy imposes a discriminatory burden because putting on makeup takes more time and costs more money than complying with the requirements imposed on men. The plaintiff failed to present evidence to that effect, and it is not the type of fact of which the court may take judicial notice, the judge said.
The chief judge also distinguished the Harrah’s policy from employer standards that have been rejected in the past as perpetuating invalid sexual stereotypes, such as where a woman was denied partner status at a major accounting firm because she was viewed as overly aggressive.
“This is not a case where the dress or appearance requirement is intended to be sexually provocative and tending to stereotype women as sex objects,” Schroeder wrote.
“There is no evidence of a stereotypical motivation on the part of the employer,” she said. “This case is essentially a challenge to one small part of what is an overall apparel, appearance and grooming policy that applies largely the same requirements to both men and women.”
She criticized the dissenters for seeking to segment the grooming policy into separate components and attacking the makeup requirement as perpetuating a sexual stereotype, rather than looking at the grooming standards as a whole.
The dissenters argued that it was obvious that the makeup requirement imposed a time-and-money burden exclusively on women, and that there was enough evidence to create a triable claim that the it was intended to pigeonhole women as sex objects.
“Harrah’s policy requires women to apply face powder, blush, mascara and lipstick. You don’t need an expert witness to figure out that such items don’t grow on trees,” Kozinski said.
“Even those of us who don’t wear makeup know how long it can take from the hundreds of hours we’ve spent over the years frantically tapping our toes and pointing to our wrists,” he noted.
Pregerson said the policy sent an “inescapable message...that women’s undoctored faces compare unfavorably to men’s, not because of a physical difference between men’s and women’s faces, but because of a cultural assumption — and gender-based stereotype — that women’s faces are incomplete, unattractive or unprofessional without full makeup.”
Patrick Hicks, a lawyer in Littler Mendelson’s Las Vegas office who represented Harrah’s in the case, told The Associated Press that the court had “affirmed an employer’s right to adopt reasonable dress and grooming standards,” while Ken McKenna, a Reno lawyer who represented Jespersen, said that while she lost her case “it is a victory for women of the future.”
“[I]n the future,” he told the AP, “women are going to know to testify that mascara costs $6 and blush costs $12 and they will present the appropriate record.”
Jennifer Pizer, a lawyer for the Lambda Legal Defense and Education Fund in Los Angeles, said Jespersen is “a hero.”
“It takes a lot of courage as well as a lot of guts to give up one’s job in protest of a really burdensome demeaning workplace restriction,” said Pizer, who helped represent her.
“What I hope we’ll see is more employers thinking hard before they impose sex-differentiated uniform or appearance requirements.”
Copyright 2006, Metropolitan News Company