So, too, a large and perhaps growing number of women choose to present themselves to the world without makeup. Unwilling to wear the makeup, and not qualifying for any open positions at the casino with a similar compensation scale, Jespersen left her employment with Harrah s. Jespersen refused to comply with the makeup requirement and was effectively terminated for that reason. They must be well groomed, appealing to the eye, be firm and body toned, and be comfortable with maintaining this look while wearing the specified uniform. Like Jespersen, I would find such a regime burdensome and demeaning; it would interfere with my job performance. Following Price Waterhouse, our court has held that sexual harassment of an employee because of that employee s failure to conform to commonly-accepted gender stereotypes is sex discrimination in violation of Title VII. So, too, a large and perhaps growing number of women choose to present themselves to the world without makeup.
Like Jespersen, I would find such a regime burdensome and demeaning; it would interfere with my job performance. If we were to do so, we would come perilously close to holding that every grooming, apparel, or appearance requirement that an individual finds personally offensive, or in conflict with his or her own selfimage, can create a triable issue of sex discrimination. Thus, Price Waterhouse does not qualify as an "intervening decision" which could serve as a basis for overruling Frank. Darlene Jespersen was a bartender at the sports bar in Harrah's Casino in Reno, Nevada, for nearly 20 years. Such discrimination is clearly and unambiguously impermissible under Title VII, which requires that "gender must be irrelevant to employment decisions. Defendant thereafter terminated Plaintiff's employment. To me, this states a case of disparate burden, and I would let a jury decide whether an employer can force a woman to make this choice.
Nor do I think it appropriate for a court to dismiss a woman s testimony that she finds wearing makeup degrading and intrusive, as Jespersen clearly does. The standards required all bartenders, men and women, to wear the same uniform of black pants and white shirts, a bow tie, and comfortable black shoes. MGM Grand Hotel, Inc. Applying Price Waterhouse, our court concluded that this harassment was actionable discrimination because of the plaintiff s sex. Today, a man wearing body piercing jewelry is hardly noticed. Jespersen and her female colleagues were required to meet with professional image consultants who in turn created a facial template for each woman.
In February 2000, Harrah s implemented a Beverage Department Image Transformation program at twenty Harrah s locations, including its casino in Reno. Today, a man wearing body piercing jewelry is hardly noticed. The standards required all bartenders, men and women, to wear the same uniform of black pants and white shirts, a bow tie, and comfortable black shoes. We did so because the airline imposed no weight restriction whatsoever on a class of male employees who performed the same or similar functions as the flight attendants. UNEQUAL BURDENS 32 In order to assert a valid Title VII claim for sex discrimination, a plaintiff must make out a prima facie case establishing that the challenged employment action was either intentionally discriminatory or that it had a discriminatory effect on the basis of gender.
The fact that Harrah s required female bartenders to conform to a sex stereotype by wearing full makeup while working is not in dispute, and the policy is described at length in the majority opinion. There is no evidence that it falls more harshly on one gender than the other. . § 1291, and we affirm. She was initially hired as a dishwasher, but was soon promoted. City of Salem, , 574 6th Cir.
Hicks, Littler Mendelson, P. There is also no question that her performance was not only competent; it was spectacular. Today, a man wearing body piercing jewelry is hardly noticed. Not only do we have her sworn statement to that effect, but there can be no doubt about her sincerity or the intensity of her feelings: She quit her job—a job she performed well for two decades—rather than put on the makeup. The weight restriction was part of an overall program to create a sexual image for the airline. United States Court of Appeals,Ninth Circuit.
I suspect many of my colleagues would feel the same way. HARRAH S OPERATING CO. Finally, I note with dismay the employer s decision to let go a valued, experienced employee who had gained accolades JESPERSEN v. No exotic nail art or length. During Jespersen's entire tenure with Harrah's, the company maintained a policy encouraging female beverage servers to wear makeup.
In Carroll, the defen- dant bank required women to wear employer-issued uniforms, but permitted men to wear business attire of their own choos- ing. While those individual requirements differ according to gender, none on its face places a greater burden on one gender than the other. City of Belleville, 119 F. Therefore, I respectfully dissent. See Judge Pregerson Dissent at 4139.
As a result, we would have to speculate about those issues in order to then guess whether the policy creates unequal burdens for women. The district court further observed that the Supreme Court's decision in Price Waterhouse v. Callahan, and Carlos T. Although Jespersen never cared for makeup, she tried wearing it for a short period of time in the 1980s. There, the court held that weight restrictions that held males to a large-framed standard but held females to a medium-framed standard was facially discriminatory because it imposed different and more burdensome weight standards on women. We have previously held that grooming and appearance standards that apply differently to women and men do not constitute discrimination on the basis of sex. Pizer, LAMBDA Legal Defense and Education Fund, Inc.
Makeup, moreover, touches delicate parts of the anatomy—the lips, the eyes, the cheeks—and can cause serious discomfort, sometimes even allergic reactions, for 4142 JESPERSEN v. Similarly, in Rene v. Nor is there any rational doubt that application of makeup is an intricate and painstaking process that requires considerable time and care. You don't need an expert witness to figure out that such items don't grow on trees. The standards also included grooming requirements that differed to some extent for men and women, requiring women to wear some facial makeup and not permitting men to wear any. However, the Court did not state that such evidence was required. HARRAH S OPERATING CO.