En Banc Ninth Circuit Upholds Finding Against Jespersen in Casino Make-Up Case

From Howard over at How Appealing:

By a vote of 7-4, today the en banc Ninth Circuit reaches the same result as the majority on the earlier three-judge panel in rejecting a Title VII sex stereotyping claim brought by a casino bartender who was fired because she refused to comply with the casino's grooming policy requiring female bartenders to wear make-up. The concluding paragraph of the majority opinion begins:

We emphasize that we do not preclude, as a matter of law, a claim of sex-stereotyping on the basis of dress or appearance codes. Others may well be filed, and any bases for such claims refined as law in this area evolves. This record, however, is devoid of any basis for permitting this particular claim to go forward, as it is limited to the subjective reaction of a single employee, and there is no evidence of a stereotypical motivation on the part of the employer.

More specifically, with regard to Jepersen's claim that the requirement for certain female employees to wear make up at the casino caused an unequal burden on women, the court found:

Rather, Harrah’s “Personal Best” policy contains sex-differentiated requirements regarding
each employee’s hair, hands, and face. While those individual requirements differ according to gender, none on its face places a greater burden on one gender than the other. Grooming standards that appropriately differentiate between the genders
are not facially discriminatory.

And as far as Jespersen's claim that this was gender stereotype discrimination of the type prohibited by Price Waterhouse:

There is no evidence in this record to indicate that the policy was adopted to make women bartenders conform to a commonly-accepted stereotypical image of what women
should wear. The record contains nothing to suggest the grooming standards would objectively inhibit a woman’s ability to do the job. The only evidence in the record to support the stereotyping claim is Jespersen’s own subjective reaction to the makeup requirement.

From an optimistic standpoint, I guess the outcome of this case can be seen as a partial win for employee rights advocates in that although Jespersen herself lost her case, the court clearly envisions sex-stereotyping claims on the basis of dress or appearances codes in the future if proper evidence exists to back up such claims.

Today's en banc decision in Jespersen v. Harrah's Operating Co., Inc., No. 03-15045 (9th Cir. Apr. 14, 2006) (en banc) can be read here.

PS