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04-17-2006, 07:10 PM
MercuryNews.com | 04/14/2006 | Appeals court upholds makeup rule for bartender (http://www.mercurynews.com/mld/mercurynews/news/local/14345424.htm)
RENO, Nev. - Harrah's Entertainment Inc.'s requirement that women bartenders wear makeup at its casinos does not amount to sex discrimination, the 9th U.S. Circuit Court of Appeals in ruled Friday in a split decision.
Lawyers for Harrah's said the 7-4 ruling against Darlene Jespersen -- who was fired in 2000 for refusing to wear makeup after 21 years as a bartender at Harrah's in Reno -- affirms the right of employers to adopt reasonable dress and grooming standards.
But Jespersen's lawyers said the court has opened the door for more anti-discrimination suits by outlining what must be proven to establish sex-stereotyping through dress codes.
The appellate court in San Francisco ruled that Harrah's policy was no more burdensome on women than on men partly because men were required to cut their hair while women were not, and that while women had to wear makeup, men were prohibited from doing so.
``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,'' Chief Judge Mary M. Schroeder wrote in the majority opinion.
``There is no evidence of a stereotypical motivation on the part of the employer,'' the decision 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.''
Jespersen asked for the full court to hear the case after a 3-member panel of the court in 2004 upheld a similar ruling by a federal judge in Reno in 2002.
The four dissenting judges said Friday the majority erred in concluding that Jespersen had no basis for her lawsuit because she failed to present evidence that applying makeup was more costly and time-consuming than getting a hair cut.
``Is there any doubt that putting on makeup costs money and takes time?'' Judge Alex Kozinski wrote in one of two dissenting opinions joined by Judges Susan Graber and William A. Fletcher.
``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 said.
In a separate dissent, Judge Harry Pregerson said the policy clearly ``was motivated by sex stereotyping.''
``Harrah's fired her because she did not comply with a grooming policy that imposed a facial uniform (full makeup) on only female bartenders,'' he wrote.
``The inescapable message is 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.''
Schroeder said in the majority opinion that the makeup requirement was different from other corporate rules that the court had found to be illegal in the past, such as weight restrictions airlines placed on female flight attendants as ``part of an overall program to create a sexual image for the airline.''
``In contrast, this case involves an appearance policy that applied to both male and female bartenders and was aimed at creating a professional and very similar look for all of them,'' he wrote.
Patrick Hicks, a Las Vegas lawyer who represented Harrah's in the case, said it was an important decision that confirms ``there was no evidence that Harrah's policy had either the intent nor the impact of discriminating on the basis of sex.''
``More importantly, the court affirmed an employer's right to adopt reasonable dress and grooming standards,'' he said.
Ken McKenna, a Reno lawyer who represented Jespersen, said that while she lost her case ``it is a victory for women of the future.''
``The majority opinion cops out by saying Darlene never testified what the cost of the makeup is,'' McKenna said.
``But in the future, women are going to know to testify that mascara costs $6 and blush costs $12 and they will present the appropriate record,'' he said.
``She has kicked the door wide open for women in the future who feel being forced to wear layers and layers of makeup is a sexual stereotype.''
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.''
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RENO, Nev. - Harrah's Entertainment Inc.'s requirement that women bartenders wear makeup at its casinos does not amount to sex discrimination, the 9th U.S. Circuit Court of Appeals in ruled Friday in a split decision.
Lawyers for Harrah's said the 7-4 ruling against Darlene Jespersen -- who was fired in 2000 for refusing to wear makeup after 21 years as a bartender at Harrah's in Reno -- affirms the right of employers to adopt reasonable dress and grooming standards.
But Jespersen's lawyers said the court has opened the door for more anti-discrimination suits by outlining what must be proven to establish sex-stereotyping through dress codes.
The appellate court in San Francisco ruled that Harrah's policy was no more burdensome on women than on men partly because men were required to cut their hair while women were not, and that while women had to wear makeup, men were prohibited from doing so.
``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,'' Chief Judge Mary M. Schroeder wrote in the majority opinion.
``There is no evidence of a stereotypical motivation on the part of the employer,'' the decision 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.''
Jespersen asked for the full court to hear the case after a 3-member panel of the court in 2004 upheld a similar ruling by a federal judge in Reno in 2002.
The four dissenting judges said Friday the majority erred in concluding that Jespersen had no basis for her lawsuit because she failed to present evidence that applying makeup was more costly and time-consuming than getting a hair cut.
``Is there any doubt that putting on makeup costs money and takes time?'' Judge Alex Kozinski wrote in one of two dissenting opinions joined by Judges Susan Graber and William A. Fletcher.
``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 said.
In a separate dissent, Judge Harry Pregerson said the policy clearly ``was motivated by sex stereotyping.''
``Harrah's fired her because she did not comply with a grooming policy that imposed a facial uniform (full makeup) on only female bartenders,'' he wrote.
``The inescapable message is 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.''
Schroeder said in the majority opinion that the makeup requirement was different from other corporate rules that the court had found to be illegal in the past, such as weight restrictions airlines placed on female flight attendants as ``part of an overall program to create a sexual image for the airline.''
``In contrast, this case involves an appearance policy that applied to both male and female bartenders and was aimed at creating a professional and very similar look for all of them,'' he wrote.
Patrick Hicks, a Las Vegas lawyer who represented Harrah's in the case, said it was an important decision that confirms ``there was no evidence that Harrah's policy had either the intent nor the impact of discriminating on the basis of sex.''
``More importantly, the court affirmed an employer's right to adopt reasonable dress and grooming standards,'' he said.
Ken McKenna, a Reno lawyer who represented Jespersen, said that while she lost her case ``it is a victory for women of the future.''
``The majority opinion cops out by saying Darlene never testified what the cost of the makeup is,'' McKenna said.
``But in the future, women are going to know to testify that mascara costs $6 and blush costs $12 and they will present the appropriate record,'' he said.
``She has kicked the door wide open for women in the future who feel being forced to wear layers and layers of makeup is a sexual stereotype.''
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.''
[/URL]
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[url="http://feeds.feedburner.com/Sxxxyorg?m=1539"]Link To Original Article (http://feeds.feedburner.com/~f/Sxxxyorg?a=JV7a9RhG)