Darlene Jespersen v. Harrah's Operating Company, Inc.
392 F.3d 1076 (2004)
Rule of Law:
An employer's grooming and appearance policy that applies different standards to men and women does not violate Title VII so long as it imposes roughly equal burdens on both sexes. A claim of impermissible sex stereotyping under Price Waterhouse does not invalidate a sex-differentiated grooming policy that passes the 'unequal burdens' test.
Facts:
- Darlene Jespersen was a highly-rated bartender at Harrah's Casino for nearly 20 years.
- For most of her employment, Harrah's encouraged but did not require female employees to wear makeup.
- Jespersen tried wearing makeup in the 1980s but found it made her feel sick, degraded, and interfered with her job performance; she stopped wearing it without objection from Harrah's.
- In February 2000, Harrah's implemented a new 'Personal Best' grooming policy with specific, gender-differentiated appearance standards for beverage servers.
- The policy required female servers to have 'teased, curled, or styled' hair and wear stockings and colored nail polish, while male servers were required to maintain short haircuts and were prohibited from wearing makeup or colored nail polish.
- Shortly thereafter, the policy was amended to make wearing makeup (foundation, blush, mascara, and lipstick) mandatory for all female beverage servers.
- Jespersen refused to comply with the mandatory makeup requirement, stating it was harmful to her dignity and effectiveness.
- After being given 30 days to apply for another position without the requirement and not doing so, Jespersen was terminated by Harrah's.
Procedural Posture:
- Darlene Jespersen exhausted her administrative remedies with the Equal Employment Opportunity Commission (EEOC).
- Jespersen filed suit against Harrah’s in the U.S. District Court, alleging disparate treatment sex discrimination under Title VII.
- The district court (a trial court) granted summary judgment in favor of Harrah's.
- Jespersen (appellant) appealed the district court's judgment to the U.S. Court of Appeals for the Ninth Circuit, where Harrah's was the appellee.
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Issue:
Does a mandatory grooming policy that requires female beverage servers to wear makeup, while prohibiting male servers from wearing makeup, violate Title VII's prohibition on sex discrimination when the policy as a whole imposes comparable burdens on both genders?
Opinions:
Majority - Tashima, Circuit Judge
No, a mandatory grooming policy that requires female beverage servers to wear makeup, while prohibiting male servers from wearing makeup, does not violate Title VII's prohibition on sex discrimination because sex-differentiated appearance standards are permissible so long as they do not impose an unequal burden on one gender. The controlling standard in the Ninth Circuit is the 'unequal burdens' test, which requires evaluating the employer's policy as a whole by comparing all requirements imposed on men to all requirements imposed on women. Jespersen failed to meet her burden of proof because she produced no admissible evidence showing that the costs and time associated with the women's makeup and hair requirements were greater than the burdens imposed on men, such as maintaining short hair. The court also declined to apply the sex-stereotyping theory from Price Waterhouse v. Hopkins to grooming standards cases, noting that its precedent had limited that theory's application to sexual harassment claims and that the court was bound by its en banc decision in Frank, which post-dated Price Waterhouse and affirmed the unequal burdens test.
Dissenting - Thomas, Circuit Judge
Yes, a mandatory grooming policy that requires female beverage servers to wear makeup, while prohibiting male servers from wearing makeup, violates Title VII's prohibition on sex discrimination because it both imposes an unequal burden and constitutes impermissible sex stereotyping. First, the policy is a classic case of discrimination under Price Waterhouse v. Hopkins because Harrah's fired Jespersen for her failure to conform to a sex stereotype. This theory is not limited to sexual harassment and applies to any adverse employment action, including termination. Second, even under the 'unequal burdens' test, Jespersen raised a triable issue of fact. The majority's approach of 'balancing' disparate burdens is flawed; the court should compare corresponding requirements, and the makeup rule for women has no male counterpart. Furthermore, the court ignored non-monetary burdens like the dignitary harm of conforming to a demeaning stereotype, and a reasonable jury could find the women's requirements more onerous than the men's.
Analysis:
This decision solidifies the 'unequal burdens' test as the controlling standard for sex-differentiated grooming policies in the Ninth Circuit, creating a clear carve-out from the sex-stereotyping analysis of Price Waterhouse. The ruling places a significant evidentiary burden on plaintiffs, requiring them to produce specific evidence of time and cost to prove that a policy's requirements for their gender are demonstrably more onerous than those for the other. This creates a potential split with other circuits that may be more willing to apply Price Waterhouse to grooming standards, setting the stage for future legal challenges. The case signals a judicial reluctance to evaluate the subjective, dignitary, or stereotyping harms of grooming policies, favoring instead a more objective comparison of tangible burdens.
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