Employee Failed To Show That Casino’s Policy Requiring Female Employees To Wear Makeup Is Discriminatory

Issue

In Jespersen v. Harrah’s Operating Company (2004 Daily Journal D.A.R. 15,328, 9th Cir. (Nev.), Dec. 28, 2004), the United States Court of Appeals considered the issue of whether an employee presented sufficient evidence to show that a casino discriminated against female employees by requiring them to wear makeup.

Facts

Harrah’s Operating Co. (Employer) implemented a “Beverage Department Image Transformation” program at 20 of its locations. In addition to gender-neutral appearance standards, the policy included gender-specific standards for beverage servers. Female servers were required to wear stockings, nail polish, makeup, and “teased, curled, or styled” hair; male servers were prohibited from wearing makeup or colored nail polish, and were required to maintain short haircuts and neatly trimmed fingernails. Darlene Jespersen (Employee), a bartender at Employer’s casino in Reno, Nevada, refused to comply with the makeup requirement of the policy and Employer fired her. The trial court gave judgment to Employer without a trial, and Employee appealed.

Appellate Court Decision

Generally speaking, grooming and appearance standards that apply differently to men and women do not constitute discrimination. However, employers may not adopt standards that impose a greater burden on one sex than the other. Here Employee failed to present any evidence that the burden placed on female employees was greater than the burden placed on male employees. While she claimed the makeup requirement imposed greater financial and time investments, she presented no evidence to show the cost or time burdens. Nor did she present any evidence to assess the burden placed on male bartenders.

Without such evidence, Employee failed to raise a triable issue of fact as to whether Employer’s policy imposes unequal burdens on male and female employees. Thus, the Court of Appeals upheld the judgment in favor of Employer.

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