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In an opinion likely to raise the ire of civil rights and feminist groups, a divided 9th U.S. Circuit Court of Appeals panel ruled Tuesday that a woman who was fired from her job as a casino bartender for refusing to wear makeup cannot sue for sex discrimination. The 2-1 decision rejected bartender Darlene Jespersen’s argument that Harrah’s Operating Co. violated her rights when it implemented “Personal Best” image standards requiring women to wear makeup and men to trim their fingernails and keep their hair short. “Even if we were to take judicial notice of the fact that the application of makeup requires some expenditure of time and money, Jespersen would still have the burden of producing some evidence that the burdens associated with the makeup requirement are greater than the burdens the ‘Personal Best’ policy imposes on male bartenders,” Senior Judge A. Wallace Tashima wrote for the majority. Judge Barry Silverman concurred. Judge Sidney Thomas dissented, saying that a jury easily could have found that the makeup requirement illegally requires female employees to conform to sex stereotypes, or that it places more of a burden on women than Harrah’s male grooming standards. “Sex-differentiated appearance standards stemming from stereotypes that women are unfit for work, fulfill a different role in the workplace, or are incapable of exercising professional judgment systematically impose a burden on women, converting such stereotypes into stubborn reality,” Thomas wrote. Jespersen worked as a sports bartender at Harrah’s in Reno, Nev., for nearly two decades and received exemplary performance evaluations. Harrah’s encouraged female beverage servers to wear makeup, but it was not required. Jespersen briefly tried wearing makeup but later stopped because she felt it “forced her to be feminine” and to become “dolled up” like a sex object. The company changed its appearance standards in 2000, announcing the goal of a “brand standard of excellence.” It required female bartenders to use nail polish and wear their hair down and either “teased, curled or styled.” Later the rule was amended to add makeup, which Harrah’s defined as “foundation/concealer and/or face powder, as well as blush and mascara,” plus lip color. Male bartenders, meanwhile, were required to wear their hair above the collar and keep their nails clean and neatly trimmed. Makeup, ponytails and nail polish were banned for men. Jespersen was terminated in July 2000 after refusing to comply with the makeup requirements. A district court granted summary judgment for Harrah’s, ruling that its policy did not impose unequal burdens on the sexes. The 9th Circuit agreed. Tashima wrote that there is “no evidence in the record in support of [Jespersen's] contention” that cosmetics can cost hundreds of dollars per year and that applying them requires a significant investment in time. He further held that Harrah’s policy did not run afoul of the 1989 U.S. Supreme Court ruling Price Waterhouse v. Hopkins, 490 U.S. 229, in which a female associate who was perceived as too “macho” successfully challenged her exclusion from an accounting firm’s partnership. Tashima wrote that Price Waterhouse “did not address the specific question of whether an employer can impose sex-differentiated appearance and grooming standards on its male and female employees.” In his dissent, Thomas said Jespersen should be able to bring her case to a jury, adding that the decision leaves service workers unprotected from discrimination. “The distinction created by the majority opinion leaves men and women in service industries, who are more likely to be subject to policies like the Harrah’s ‘Personal Best’ policy, without the protection that white-collar professionals receive,” Thomas said. Jespersen’s attorney, Jennifer Pizer of the Lambda Legal Defense and Education Fund in Los Angeles, said the court “erred in a few ways when defining an unequal burden.” “There is a burden in makeup costs. And there’s the burden of the message that these female employees are subordinate and unacceptable as workers unless they present an ultra-feminine appearance,” Pizer said. “Male employees must be clean and neat and look professional and women are deemed unprofessional if they are clean and neat, but don’t alter their appearance,” she said. Harrah’s attorney, Veronica Arechederra Hall of Littler Mendelson’s Las Vegas office, referred all questions to Harrah’s spokesman Gary Thompson. Thompson said modified appearance standards requiring makeup are still in place at the casino. “We implemented these policies in response to requests from customers accustomed to a level of service and a type of appearance,” Thompson said. “This is no different from CBS requiring a female or even a male reporter to wear makeup on television.” Jespersen v. Harrah’s, 04 C.D.O.S. 11332, attracted numerous amici curiae, including the American Civil Liberties Union, the National Employment Lawyers Association and the American Hotel & Lodging Association, among others.

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