Jespersen v. Harrah’s Operating Co., Inc.
444 F.3d 1104 (9th Cir. 2006) (en banc)
Darlene Jespersen was a bartender at Harrah’s for over 20 years. She quit after the company implemented the “Personal Best” program, because she was unwilling to wear makeup as part of the policy required.
- The program consisted of grooming and appearance standards that applied to both sexes, as well as some sex-differentiated requirements relating to makeup and nails.
- Jespersen didn’t wear makeup on or off the job and testified that when she did wear it, she felt very degraded and very demeaned, and that it prohibited her from doing her job because it affected her self-dignity.
- This led to a suit under Title VII, alleging that the Personal Best policy discriminated against women by
(1) subjecting them to terms and conditions of employment to which men are not similarly subjected, and
(2) requiring that women conform to sex-based stereotypes as a term and condition of employment.
The district court granted Harrah’s motion for summary judgment.
(1) Did the policy impose an unequal burden on women?
(2) Was there impermissible sex stereotyping?
(1) The court held that the appearance policy applied to both male and female bartenders, and did not unreasonably burden women more so than men.
- Apparently men keeping their hair short is comparable to women wearing makeup.
(2) The court distinguished this case from Price Waterhouse in that the Personal Best program didn’t single out one person – it applied to all of the bartenders, male and female.
- ‘This case was limited to the subjective reaction of a single employee, and there wasn’t evidence of a stereotypical motivation on the part of the employer.’
- Something requiring women to wear short shorts and low-cut shirts would likely suffice.
Rule: An employer’s grooming and dress policy that applies to both sexes does not violate Title VII absent a showing that the policy imposed unreasonable or unequal burdens on one gender more so than the other.
- Prof: As long as the policies are based on generally accepted differences between what men and women should wear / how they should appear etc, and there’s no unequal burden on one gender, there generally isn’t a Title VII violation (unless there’s impermissible sex stereotyping).
Side Note: First Amendment protections don’t apply to the private sector, which is why most hair length cases have been brought under Title VII. Generally, plaintiffs have been unsuccessful for two reasons:
(1) It has been held that Title VII was designed only to prohibit discrimination based on immutable characteristics.
(2) Hair length regulations do not inhibit employment opportunity.