Plaintiff Darlene Jespersen was fired from her job as a bartender at Harrah’s Casino because she refused to wear “facial make-up.” Under Harrah’s “Personal Best” gender specific grooming policies, all women employees are required to wear make-up, but men are forbidden to do so. In addition, women are allowed to have long hair, but men are required have short hair. Women have to meet with professional image consultants and wear foundation, blush, mascara and lip color at all times.
The district court granted summary judgment for Harrah’s, holding that the policy imposes equal burdens on men and women, and did not discriminate against Jesperson on basis of “immutable characteristics” of her sex. On appeal, an initial Ninth Circuit panel affirmed on a different ground, concluding that the grooming policy could be challenged as discriminatory, but that Jespersen had failed to show that the grooming policy placed a greater burden on women than on men. After rehearing the matter en banc, a majority of the Ninth Circuit agreed, holding that Jespersen had “failed to create any triable issue of fact” that the challenged policy placed an unequal burden on women, or was motivated by sex stereotyping, and therefore she did not have a viable Title VII claim.
Four judges dissented. In his dissenting opinion, Kozinski couldn’t resist saying things like:
“[I]s there any doubt that putting on make-up costs money and takes time? 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,” and the lengthy time that a women has to spend “putting on her face” was evident from “the hundreds of hours we’ve spent over the years frantically tapping our toes and pointing to our wrists.”
Read the entire opinion here.
Thanks to Michael Froomkin for bringing the opinion to my attention. Next time I want to pointlessly throw money away I’ll do it at a non-Harrah’s casino. NB: A scholarly paper about this very case was previously highlighted here.
Update: Read Gowri Ramachandran’s initial take on the case here.