Civil rights

Court refuses makeup challenge
Former Harrah’s bartender Darlene Jespersen has lost her effort to charge the casino with sexual discrimination.

Harrah’s fired Jespersen, an employee with an impeccable record and numerous testimonials from customers, when she declined to comply with new “personal best” grooming rules that required her to wear makeup. She argued that complying with the new rules was expensive, and the rules were not equally applicable to men.

Harrah’s attorneys argued that the makeup requirement for women should be weighed against elements such as the hair length requirement that weighed solely against men. Jespersen’s lawyers said a makeup requirement for women should be weighed only against a no-makeup rule for men.

Under the Harrah’s program, photographs were taken of employees, and they were required to continue looking like their photos over their period of employment, prompting columnist Andrew Barbano to argue that Harrah’s had made getting old an employment violation. In a throwback to the 1960s, there was also a rule against male employees having long hair, which turned out to have importance in Jespersen’s lawsuit. Moreover, the Harrah’s policy said casino workers must like the grooming policy, under a rule that employees were required to “be comfortable with maintaining this look.”

The ruling on the case wasn’t about the merits but about whether Jespersen would be permitted to take her case to trial and let jurors decide the issues. A lower-court judge, Edward Reed, had dismissed the suit without allowing a trial, and the U.S. Court of Appeals for the Ninth Circuit Tuesday ruled that the judge acted properly.

“We have previously held that grooming and appearance standards that apply differently to women and men do not constitute discrimination based on sex,” said the opinion by Judge Wallace Tashima.

It also said Jespersen had failed to substantiate her argument about makeup being expensive, although she submitted scholarly studies on the subject of cosmetics costs.

The court suggested it might reach a different result if the activity at issue was more burdensome than the use of makeup, such as weight requirements. That could run afoul of a legal doctrine called the “unequal burdens” test, the court said.

Two members of the three-judge panel (all men) that heard the case voted against Jespersen. The third, Judge Sidney Thomas, wrote in dissent that Jespersen had met all the burdens the law placed on her to go to trial: “Jespersen has articulated a classic case of … discrimination and has tendered sufficient undisputed, material facts to avoid summary [dismissal].”