444 F.3d 1104 (9th Cir. 2006), 03-15045, Jespersen v. Harrah's Operating Co., Inc.

Docket Nº:03-15045.
Citation:444 F.3d 1104
Party Name:Darlene JESPERSEN, Plaintiff-Appellant, v. HARRAH'S OPERATING COMPANY, Inc., Defendant-Appellee.
Case Date:April 14, 2006
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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444 F.3d 1104 (9th Cir. 2006)

Darlene JESPERSEN, Plaintiff-Appellant,

v.

HARRAH'S OPERATING COMPANY, Inc., Defendant-Appellee.

No. 03-15045.

United States Court of Appeals, Ninth Circuit.

April 14, 2006

Argued and Submitted June 22, 2005.

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Jennifer C. Pizer, Lambda Legal Defense and Education Fund, Inc., Los Angeles, CA, for the plaintiff-appellant.

Kenneth J. McKenna, Kenneth James McKenna, Inc., Reno, NV, for the plaintiff-appellant.

Patrick H. Hicks and Veronica Arechederra Hall, Littler Mendelson, P.C., Las Vegas, NV, for the defendant-appellee.

Appeal from the United States District Court for the District of Nevada; Edward C. Reed, District Judge, Presiding. D.C. No. CV-01-00401-ECR.

Before SCHROEDER, Chief Judge, PREGERSON, KOZINSKI, RYMER, SILVERMAN, GRABER, W. FLETCHER, TALLMAN, CLIFTON, CALLAHAN, and BEA, Circuit Judges.

OPINION

SCHROEDER, Chief Judge.

We took this sex discrimination case en banc in order to reaffirm our circuit law concerning appearance and grooming standards, and to clarify our evolving law of sex stereotyping claims.

The plaintiff, Darlene Jespersen, was terminated from her position as a bartender at the sports bar in Harrah's Reno casino not long after Harrah's began to enforce its comprehensive uniform, appearance and grooming standards for all bartenders. The standards required all bartenders, men and women, to wear the same uniform of black pants and white shirts, a bow tie, and comfortable black

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shoes. The standards also included grooming requirements that differed to some extent for men and women, requiring women to wear some facial makeup and not permitting men to wear any. Jespersen refused to comply with the makeup requirement and was effectively terminated for that reason.

The district court granted summary judgment to Harrah's on the ground that the appearance and grooming policies imposed equal burdens on both men and women bartenders because, while women were required to use makeup and men were forbidden to wear makeup, women were allowed to have long hair and men were required to have their hair cut to a length above the collar. Jespersen v. Harrah's Operating Co., 280 F.Supp.2d 1189, 1192-93 (D.Nev. 2002). The district court also held that the policy could not run afoul of Title VII because it did not discriminate against Jespersen on the basis of the "immutable characteristics" of her sex. Id. at 1192. The district court further observed that the Supreme Court's decision in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) (plurality opinion), prohibiting discrimination on the basis of sex stereotyping, did not apply to this case because in the district court's view, the Ninth Circuit had excluded grooming standards from the reach of Price Waterhouse . Jespersen, 280 F.Supp.2d at 1193. In reaching that conclusion, the district court relied on Nichols v. Azteca Restaurant Enters., Inc., 256 F.3d 864, 875 n.7 (9th Cir. 2001) ("We do not imply that all gender-based distinctions are actionable under Title VII. For example, our decision does not imply that there is any violation of Title VII occasioned by reasonable regulations that require male and female employees to conform to different dress and grooming standards."). Jespersen, 280 F.Supp.2d at 1193. The district court granted summary judgment to Harrah's on all claims.

The three-judge panel affirmed, but on somewhat different grounds. Jespersen v. Harrah's Operating Co., 392 F.3d 1076 (9th Cir. 2004). The panel majority held that Jespersen, on this record, failed to show that the appearance policy imposed a greater burden on women than on men. Id. at 1081-82. It pointed to the lack of any affidavit in this record to support a claim that the burdens of the policy fell unequally on men and women. Accordingly, the panel did not agree with the district court that grooming policies could never discriminate as a matter of law. On the basis of Nichols and Rene v. MGM Grand Hotel, Inc., 305 F.3d 1061 (9th Cir. 2002) (en banc), the panel also held that Price Waterhouse could apply to grooming or appearance standards only if the policy amounted to sexual harassment, which would require a showing that the employee suffered harassment for failure to conform to commonly-accepted gender stereotypes. Id. at 1082-83. The dissent would have denied summary judgment on both theories. Id. at 1083-88.

We agree with the district court and the panel majority that on this record, Jespersen has failed to present evidence sufficient to survive summary judgment on her claim that the policy imposes an unequal burden on women. With respect to sex stereotyping, we hold that appearance standards, including makeup requirements, may well be the subject of a Title VII claim for sexual stereotyping, but that on this record Jespersen has failed to create any triable issue of fact that the challenged policy was part of a policy motivated by sex stereotyping. We therefore affirm.

I. BACKGROUND

Plaintiff Darlene Jespersen worked successfully as a bartender at Harrah's for

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twenty years and compiled what by all accounts was an exemplary record. During Jespersen's entire tenure with Harrah's, the company maintained a policy encouraging female beverage servers to wear makeup. The parties agree, however, that the policy was not enforced until 2000. In February 2000, Harrah's implemented a "Beverage Department Image Transformation" program at twenty Harrah's locations, including its casino in Reno. Part of the program consisted of new grooming and appearance standards, called the "Personal Best" program. The program contained certain appearance standards that applied equally to both sexes, including a standard uniform of black pants, white shirt, black vest, and black bow tie. Jespersen has never objected to any of these policies. The program also contained some sex-differentiated appearance requirements as to hair, nails, and makeup.

In April 2000, Harrah's amended that policy to require that women wear makeup. Jespersen's only objection here is to the makeup requirement. The amended policy provided in relevant part:

All Beverage Service Personnel, in addition to being friendly, polite, courteous and responsive to our customer's needs, must possess the ability to physically perform the essential factors of the job as set forth in the standard job descriptions. They must be well groomed, appealing to the eye, be firm and body toned, and be comfortable with maintaining this look while wearing the specified uniform. Additional factors to be considered include, but are not limited to, hair styles, overall body contour, and degree of comfort the employee projects while wearing the uniform.

* * *

Beverage Bartenders and Barbacks will adhere to these additional guidelines:

• Overall Guidelines (applied equally to male/ female):

• Appearance: Must maintain Personal Best image portrayed at time of hire.

• Jewelry, if issued, must be worn. Otherwise, tasteful and simple jewelry is permitted; no large chokers, chains or bracelets.

• No faddish hairstyles or unnatural colors are permitted.

• Males:

• Hair must not extend below top of shirt collar. Ponytails are prohibited.

• Hands and fingernails must be clean and nails neatly trimmed at all times. No colored polish is permitted.

• Eye and facial makeup is not permitted.

• Shoes will be solid black leather or leather type with rubber (non skid) soles.

• Females:

• Hair must be teased, curled, or styled every day you work. Hair must be worn down at all times, no exceptions.

• Stockings are to be of nude or natural color consistent with employee's skin tone. No runs.

• Nail polish can be clear, white, pink or red color only. No exotic nail art or length.

• Shoes will be solid black leather or leather type with rubber (non skid) soles.

• Make up (face powder, blush and mascara) must be worn and applied neatly in complimentary colors. Lip color must be worn at all times.

(emphasis added).

Jespersen did not wear makeup on or off the job, and in her deposition stated that

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wearing it would conflict with her self-image. It is not disputed that she found the makeup requirement offensive, and felt so uncomfortable wearing makeup that she found it interfered with her ability to perform as a bartender. Unwilling to wear the makeup, and not qualifying for any open positions at the casino with a similar compensation scale, Jespersen left her employment with Harrah's.

After exhausting her administrative remedies with the Equal Employment Opportunity Commission and obtaining a right to sue notification, Jespersen filed this action in July 2001. In her complaint, Jespersen sought damages as well as declaratory and injunctive relief for discrimination and retaliation for opposition to discrimination, alleging that the "Personal Best" policy discriminated against women by "(1) subjecting them to terms and conditions of employment to which men are not similarly subjected, and (2) requiring that women conform to sex-based stereotypes as a term and condition of employment."

Harrah's moved for summary judgment, supporting its motion with documents giving the history and purpose of the appearance and grooming policies. Harrah's argued that the policy created similar standards for both men and women, and that where the standards differentiated on the basis of sex, as with the face and hair standards, any burdens imposed fell equally on both male and female bartenders.

In her deposition testimony, attached as a response to the motion for summary judgment, Jespersen described the personal indignity she felt as a result of attempting to comply with the makeup policy. Jespersen testified that when she wore the makeup she "felt very degraded and very...

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