JESPERSEN v. HARRAH'S OPERATING CO., INC., 392 F.3d 1076 (9th Cir. 2004)
Darlene JESPERSEN, Plaintiff-Appellant, v. HARRAH'S OPERATING COMPANY, INC., Defendant-Appellee.
No. 03-15045.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted December 3, 2003.
Filed December 28, 2004.
Jennifer C. Pizer, Lambda Legal Defense & Education Fund, Inc.,
Los Angeles, CA, for the plaintiff-appellant.
Veronica Arechederra Hall, Littler Mendelson, Las Vegas, NV,
for the defendant-appellee.
Allen Lichtenstein, American Civil Liberties Union of Nevada,
Las Vegas, NV, for amici curiae American Civil Liberties Union of
Nevada, Northwest Women's Law Center, California Women's Law
Center, and The Gender Public Advocacy Coalition.
Jeffrey W. Erdman, Bennett & Erdman, Los Angeles, CA, for amici
curiae National Employment Lawyers Association, Alliance for
Workers' Rights, and The Legal Aid Society  Employment Law
Center.
Joseph E. Schuler, Littler Mendelson, Washington, D.C., for
amici curiae Council for Employment Law Equity, American Hotel &
Lodging Association, and California Hotel & Lodging Association.
Appeal from the United States District Court for the District
of Nevada; Edward C. Reed, Jr., District Judge, Presiding. D.C.
No. CV 01-0401 ECR.
Before: TASHIMA, THOMAS, and SILVERMAN, Circuit Judges.
Page 1077
TASHIMA, Circuit Judge:
Plaintiff Darlene Jespersen, a bartender at Harrah's Casino in
Reno, Nevada, brought this Title VII action alleging that her
employer's policy requiring that certain female employees wear
makeup discriminates against her on the basis of sex. The
district court granted summary judgment for Harrah's, holding
that its policy did not constitute sex discrimination because it
imposed equal burdens on both sexes. We have jurisdiction
pursuant to 28 U.S.C. § 1291, and we affirm.
I.
The following facts are undisputed. Darlene Jespersen was a
bartender at the sports bar in Harrah's Casino in Reno, Nevada,
for nearly 20 years. She was an outstanding employee. Over the
years, Jespersen's supervisors commented that she was "highly
effective," that her attitude was "very positive," and that she
made a "positive impression" on Harrah's guests. Harrah's
customers repeatedly praised Jespersen on employee feedback
forms, writing that Jespersen's excellent service and good
attitude enhanced their experience at the sports bar and
encouraged them to come back.
Throughout the 1980s and '90s Harrah's encouraged its female
beverage servers to wear makeup, but wearing makeup was not a
formal requirement. Although Jespersen never cared for makeup,
she tried wearing it for a short period of time in the 1980s. But
she found that wearing makeup made her feel sick, degraded,
exposed, and violated. Jespersen felt that wearing makeup "forced
her to be feminine" and to become "dolled up" like a sexual
object, and that wearing makeup actually interfered with her
ability to be an effective bartender (which sometimes required
her to deal with unruly, intoxicated guests) because it "took
away [her] credibility as an individual and as a person." After a
few weeks, Jespersen stopped wearing makeup because it was so
harmful to her dignity and her effectiveness behind the bar that
she could no longer do her job. Harrah's did not object to
Jespersen's choice not to wear makeup and Jespersen continued to
work at the sports bar and receive positive performance reviews
for over a decade.
In February 2000, Harrah's implemented its "Beverage Department
Image Transformation" program at 20 Harrah's locations, including
its casino in Reno. The goal of the program was to create a
"brand standard of excellence" throughout Harrah's operations,
with an emphasis on guest service positions. The program imposed
specific "appearance standards" on each of its employees in guest
services, including heightened requirements for beverage servers.
All beverage servers were required to be "well groomed, appealing
to the eye, be firm and body toned, and be comfortable with
maintaining this look while wearing the specified uniform." In
addition to these general appearance standards applicable to both
sexes, there were gender-specific standards for male and female
beverage servers. Female beverage servers were required to wear
stockings and colored nail polish, and they were required to wear
their hair "teased, curled, or styled." Male beverage servers
were prohibited from wearing makeup or colored nail polish, and
they were required to maintain short haircuts and neatly trimmed
fingernails.[fn1]
Page 1078
Harrah's called its new appearance standards the "Personal
Best" program. In order to enforce the "Personal Best" standards,
Harrah's required each beverage service employee to attend
"Personal Best Image Training" prior to his or her final uniform
fitting. At the training, "Personal Best Image Facilitators"
instructed Harrah's employees on how to adhere to the standards
of the program and tested their proficiency. At the conclusion of
the training, two photographs (one portrait and one full body)
were taken of the employee looking his or her "Personal Best."
Each employee's "Personal Best" photographs were placed in his or
her file and distributed to his or her supervisor. The
supervisors used the "Personal Best" photographs as an
"appearance measurement" tool, holding each employee accountable
to look his or her "Personal Best" on a daily basis. Jespersen
acknowledged receipt of the policy and committed to adhere to the
appearance standards for her position as a beverage bartender in
March 2000.
Shortly thereafter, however, the "Personal Best" standards were
amended such that in addition to the existing appearance
standards, all female beverage servers (including beverage
bartenders) were required to wear makeup.[fn2] As before,
male beverage servers were prohibited from wearing makeup.
Because of her objection to wearing makeup, Jespersen refused to
comply with the new policy. In July 2000, Harrah's told Jespersen
that the makeup requirement was mandatory for female beverage
service employees and gave her 30 days to apply for a position
that did not require makeup to be worn. At the expiration of the
30-day period, Jespersen had not applied for another job, and she
was terminated.
After exhausting her administrative remedies with the Equal
Employment Opportunity Commission, Jespersen brought this action
alleging that Harrah's makeup requirement for female beverage
servers constituted disparate treatment sex discrimination in
violation of 42 U.S.C. § 2000e-2(a) ("Title VII"). The district
Page 1079
court granted Harrah's motion for summary judgment, holding that
the "Personal Best" policy did not run afoul of Title VII because
(1) it did not discriminate against Jespersen on the basis of
"immutable characteristics" associated with her sex, and (2) it
imposed equal burdens on both sexes. Jespersen timely appealed
from the judgment.
II.
We review the grant of summary judgment de novo. United States
v. City of Tacoma, 332 F.3d 574, 578 (9th Cir. 2003). Summary
judgment is proper where no genuine issues of material fact
remain in dispute, such that the moving party is entitled to
judgment as a matter of law. Fed.R.Civ.P. 56(c). The moving party
has the initial burden of informing the court of the basis for
its motion and identifying the absence of any genuine issue of
material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323,
106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Where the moving party is not
the party bearing the burden of proof at trial, it can meet its
initial burden simply by "identifying those portions of `the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,' which
it believes demonstrate the absence of a genuine issue of
material fact." Id. (quoting Fed.R.Civ.P. 56(c)); see also
Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1105
(9th Cir. 2000). Once the moving party has met its initial
burden, the non-moving party must produce some evidence showing
that there remains a genuine issue of material fact for trial.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49,
106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). An issue is "genuine" only
where there is sufficient evidence for a reasonable fact finder
to find for the non-moving party. Far Out Prods., Inc. v.
Oskar, 247 F.3d 986, 992 (9th Cir. 2001) (citing Anderson,
477 U.S. at 248-49, 106 S.Ct. 2505). We view the evidence in the
light most favorable to the non-moving party. Id.
III.
Title VII prohibits employers from discriminating against "any
individual with respect to . . . compensation, terms, conditions,
or privileges of employment, because of such individual's . . .
sex." 42 U.S.C. § 2000e-2(a)(1). In order to prevail on a Title
VII disparate treatment sex discrimination claim, an employee
need only establish that, but for his or her sex, he or she would
have been treated differently. UAW v. Johnson Controls, Inc.,
499 U.S. 187, 200, 111 S.Ct. 1196, 113 L.Ed.2d 158 (1991) (citing
Los Angeles Dep't of Water & Power v. Manhart, 435 U.S. 702,
711, 98 S.Ct. 1370, 55 L.Ed.2d 657 (1978)). Although the employee
must prove that the employer acted intentionally, the intent need
not have been malevolent. Id. at 199, 111 S.Ct. 1196 ("Whether
an employment practice involves disparate treatment through
explicit facial discrimination does not depend on why the
employer discriminates but rather on the explicit terms of the
discrimination.").[fn3]
Pursuant to the "Personal Best" program, women are required to
wear makeup, while men are prohibited from doing so. Women are
required to wear their hair "teased, curled, or styled" each day,
whereas men are only required to maintain short haircuts. We must
decide whether these standards are discriminatory; whether they
are "based on a policy
Page 1080
which on its face applies less favorably to one gender. . . ."
Gerdom v. Continental Airlines, Inc., 692 F.2d 602, 608 (9th
Cir. 1982). If so, then Harrah's would have discriminated against
Jespersen "because of . . . sex." 42 U.S.C. § 2000e-2(a)(1); see
id.
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. In Baker v. Cal. Land Title
Co., 507 F.2d 895 (9th Cir. 1974), employees challenged their
employer's rule banning men, but not women, from having long
hair. Id. at 896. We concluded that grooming and dress
standards were entirely outside the purview of Title VII because
Congress intended that Title VII only prohibit discrimination
based on "immutable characteristics" associated with a worker's
sex. Id. at 897 ("Since race, national origin and color
represent immutable characteristics, logic dictates that sex is
used in the same sense rather than to indicate personal modes of
dress or cosmetic effects."); see also Fountain v. Safeway
Stores Inc., 555 F.2d 753, 755 (9th Cir. 1977) ("It is clear
that regulations promulgated by employers which require male
employees to conform to different grooming and dress standards
than female employees is not sex discrimination within the
meaning of Title VII."). Because grooming and dress standards
regulated "mutable" characteristics such as hair length, we
reasoned, employers that made compliance with such standards a
condition of employment discriminated on the basis of their
employees' appearance, not their sex.
Our later cases recognized, however, that an employer's
imposition of more stringent appearance standards on one sex than
the other constitutes sex discrimination even where the
appearance standards regulate only "mutable" characteristics such
as weight. Gerdom, 692 F.2d at 605-06. In Frank v. United
Airlines, Inc., 216 F.3d 845 (9th Cir. 2000) (en banc), a class
of female flight attendants challenged their employer's weight
restrictions as a violation of Title VII because women were held
to more strict weight limitations than were men. The employer
insisted that all employees maintain a weight that corresponded
to the "desirable" weight for their height as determined by an
insurance company table, but women were required to maintain the
weight corresponding to women of "medium" build, whereas men were
permitted to maintain the weight corresponding to men of "large"
build. Id. at 848. Citing Fountain, the employer argued that
because the weight restrictions were mere "appearance" standards,
they were not subject to Title VII. Id. at 854. We rejected the
employer's argument, holding that "[a] sex-differentiated
appearance standard that imposes unequal burdens on men and women
is disparate treatment that must be justified as a BFOQ." Id.
at 855; see also Carroll v. Talman Fed. Sav. & Loan Ass'n,
604 F.2d 1028, 1032 (7th Cir. 1979) (holding that employer's policy
requiring female employees to wear uniforms but permitting male
employees to wear "appropriate business attire" of their choosing
was sex discrimination in violation of Title VII). Although
employers are free to adopt different appearance standards for
each sex, they may not adopt standards that impose a greater
burden on one sex than the other. Frank, 216 F.3d at 855.
Although in Frank we characterized the weight standards at
issue as "appearance standards," id., we have, as yet, had no
occasion to apply the "unequal burdens" test to
gender-differentiated dress and grooming requirements. In Frank
and Gerdom, we were called upon only to compare the relative
burdens of different weight limitations imposed on male and
female employees. In those cases our task
Page 1081
was simple because it was apparent from the face of the policies
at issue that female flight attendants were subject to a more
onerous standard than were males. See Frank, 216 F.3d at 854;
Gerdom, 692 F.2d at 608.
In order to evaluate the relative burdens the "Personal Best"
policy imposes, we must assess the actual impact that it has on
both male and female employees. In doing so we must weigh the
cost and time necessary for employees of each sex to comply with
the policy. Harrah's contends that the burden of the makeup
requirement must be evaluated with reference to all of the
requirements of the policy, including those that burden men only,
such as the requirement that men maintain short haircuts and
neatly trimmed nails. Jespersen contends that the only meaningful
appearance standard against which the makeup requirement can be
measured is the corresponding "no makeup" requirement for men. We
agree with Harrah's approach. Because employers are permitted to
apply different appearance standards to each sex so long as those
standards are equal, our task in applying the "unequal burdens"
test to grooming and dress requirements must sometimes involve
weighing the relative burdens that particular requirements impose
on workers of one sex against the distinct requirements imposed
on workers of the other sex.[fn4]
Jespersen contends that the makeup requirement imposes
"innumerable" tangible burdens on women that men do not share
because cosmetics can cost hundreds of dollars per year and
putting on makeup requires a significant investment in time.
There is, however, no evidence in the record in support of this
contention. Jespersen cites to academic literature discussing the
cost and time burdens of cosmetics generally, but she presents no
evidence as to the cost or time burdens that must be borne by
female bartenders in order to comply with the makeup requirement.
Even if we were to take judicial notice of the fact that the
application of makeup requires some expenditure of time and
money, Jespersen would still have the burden of producing some
evidence that the burdens associated with the makeup requirement
are greater than the burdens the "Personal Best" policy imposes
on male bartenders, and exceed whatever "burden" is associated
with ordinary good-grooming standards. Because there is no
evidence in the record from which we can assess the burdens that
the "Personal Best" policy imposes on male bartenders either,
Jespersen's claim fails for that reason alone.
Jespersen cites United States v. Seschillie, 310 F.3d 1208,
1212 (9th Cir. 2002), for the proposition that "a jury can make
determinations requiring simple common sense without specific
supporting evidence." But Seschillie involved the entirely
different question of whether jurors in a criminal case could
draw common-sense inferences from the evidence without the aid of
expert testimony. Id. It cannot be construed as relieving
Jespersen of her burden of production at the summary judgment
stage in a civil case. As the non-moving party that bore the
ultimate burden of proof at trial, Jespersen had the burden of
producing admissible evidence that the "Personal Best" appearance
standard
Page 1082
imposes a greater burden on female beverage servers than it does
on male beverage servers. See Anderson, 477 U.S. at 248,
106 S.Ct. 2505. She has not met that burden.
Jespersen also contends that even if Harrah's makeup
requirement survives the "unequal burdens" test, that test should
be invalidated in light of the Supreme Court's decision in Price
Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775,
104 L.Ed.2d 268 (1989). In Price Waterhouse, the Supreme Court held that an
employer may not force its employees to conform to the sex
stereotype associated with their gender as a condition of
employment. Id. at 250-51, 109 S.Ct. 1775. When evaluating a
female associate's candidacy for partnership in an accounting
firm, decision makers referred to her as "macho" and suggested
that she "overcompensated for being a woman" by behaving
aggressively in the workplace. Id. at 235, 109 S.Ct. 1775. The
associate was advised that her partnership chances would be
improved if she learned to behave more femininely, wear makeup,
have her hair styled, and wear jewelry. Id. Noting that "we are
beyond the day when an employer could evaluate employees by
assuming or insisting that they matched the stereotype associated
with their group," the Court held that the employer's
discrimination against the associate because of her failure to
conform to a traditional, feminine gender stereotype was sex
discrimination in violation of Title VII. Id. at 251,
109 S.Ct. 1775.
Following Price Waterhouse, we have 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. In Nichols v. Azteca
Restaurant Enter., Inc., 256 F.3d 864 (9th Cir. 2001), a male
waiter at a restaurant sued his employer under Title VII for
sexual harassment. The waiter contended that he was harassed
because he failed to conform his behavior to a traditionally male
stereotype. Id. at 874. Noting that Price Waterhouse "sets a
rule that bars discrimination on the basis of sex stereotypes,"
we concluded that the harassment and abuse was actionable under
Title VII because the waiter was systematically abused for
failing to act "as a man should act" and for walking and carrying
his tray "like a woman." Id. at 874-75. Similarly, in Rene v.
MGM Grand Hotel, Inc., 305 F.3d 1061 (9th Cir. 2002) (en banc),
we held that a man stated a claim for sexual harassment under
Title VII where he alleged that he was the victim of assaults "of
a sexual nature" by his co-workers because of stereotypical
assumptions. Id. at 1068.
Although Price Waterhouse held that Title VII bans
discrimination against an employee on the basis of that
employee's failure to dress and behave according to the
stereotype corresponding with her gender, it did not address the
specific question of whether an employer can impose
sex-differentiated appearance and grooming standards on its male
and female employees. Nor have our subsequent cases invalidated
the "unequal burdens" test as a means of assessing whether
sex-differentiated appearance standards discriminate on the basis
of sex. Although the precise issue was not before us, we declined
to apply Price Waterhouse to grooming and appearance standards
cases when we rendered our decision in Nichols, 256 F.3d at 875
n. 7 ("Our decision does not imply that there is any violation of
Title VII occasioned by reasonable regulations that require male
and female employees to conform to different dress and grooming
standards."). And while a plurality of judges in Rene endorsed
an independent claim for gender-stereotyping sexual harassment,
such a claim is distinct from the claim Jespersen advances here.
She has presented no evidence that she or
Page 1083
any other employee has been sexually harassed as a result of the
"Personal Best" policy. In short, although we have applied the
reasoning of Price Waterhouse to sexual harassment cases, we
have not done so in the context of appearance and grooming
standards cases, and we decline to do so here. We thus disagree
with the dissent's assertion that "Jespersen has articulated a
classic case of Price Waterhouse discrimination. . . ." Dissent
at 1084.
Finally, we note that we are, in any event, bound to follow our
en banc decision in Frank, in which we adopted the unequal
burdens test. Price Waterhouse predates Frank by more than a
decade and, presumably, the Frank en banc court was aware of it
when it adopted the unequal burdens test. Thus, Price
Waterhouse does not qualify as an "intervening decision" which
could serve as a basis for overruling Frank. See EEOC v. Luce,
Forward, Hamilton & Scripps, 345 F.3d 742, 744 n. 1 (9th Cir.
2003) (en banc) (explaining that "[a] three-judge panel can
overrule a prior decision of this court [only] when an
intervening Supreme Court decision undermines an existing
precedent of the Ninth Circuit, and both cases are closely on
point") (internal quotation marks and citations omitted).
IV.
We hold that under the "unequal burdens" test, which is this
Circuit's test for evaluating whether an employer's
sex-differentiated appearance standards constitute sex
discrimination in violation of Title VII, Jespersen failed to
introduce evidence raising a triable issue of fact as to whether
Harrah's "Personal Best" policy imposes unequal burdens on male
and female employees.
The judgment of the district court is AFFIRMED.
[fn1] The text of the appearance standards provides, in relevant
part, as follows:
All Beverage Service Personnel, in addition to being
friendly, polite, courteous and responsive to our
customer's needs, must possess the ability to
physically perform the essential factors of the job
as set forth in the standard job descriptions. 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.
Additional factors to be considered include, but are
not limited to, hair styles, overall body contour,
and degree of comfort the employee projects while
wearing the uniform.
* * *
Beverage Bartenders and Barbacks will adhere to these
additional guidelines:
Overall Guidelines (applied equally to male/female):
• Appearance: Must maintain Personal Best Image
portrayed at time
• Jewelry, if issued, must be worn. Otherwise,
tasteful and simple jewelry is permitted; no large
chokers, chains or bracelets.
• No faddish hairstyles or unnatural colors are
permitted.
Males:
• Hair must not extend below top of shirt collar.
Ponytails are prohibited.
• Hands and fingernails must be clean and nails
neatly trimmed at all times. No colored polish is
permitted.
• Eye and facial makeup is not permitted.
• Shoes will be solid black leather or leather type
with rubber (non skid) soles.
Females:
• Hair must be teased, curled, or styled every day
you work. Hair must be worn down at all times, no
exceptions.
• Stockings are to be of nude or natural color
consistent with employee's skin tone. No runs.
• Nail polish can be clear, white, pink or red color
only. No exotic nail art or length.
• Shoes will be solid black leather or leather type
with rubber (non skid) soles.
[fn2] The amended policy required that "[m]ake up
(foundation/concealer and/or face powder, as well as blush and
mascara) must be worn and applied neatly in complimentary
colors," and that "[l]ip color must be worn at all times."
[fn3] Even if intentional discrimination is shown, an employer
can escape liability if sex "is a bona fide occupational
qualification ["BFOQ"] reasonably necessary to the normal
operation of that particular business or enterprise."
42 U.S.C. § 2000e-2(e)(1). There is no BFOQ issue on this appeal.
[fn4] Because the question is not presented on this record, we do
not need to define the exact parameters of the "unequal burdens"
test, as applied to personal appearance and grooming. We do note,
however, that this is not an exact science yielding results with
mathematical certainty. We further note that any "burden" to be
measured under the "unequal burdens" test is only that burden
which is imposed beyond the requirements of generally accepted
good grooming standards.
THOMAS, Circuit Judge, dissenting.
I respectfully dissent.
Harrah's required Darlene Jespersen to wear makeup to work. She
refused because the cost  measured in time, money, and personal
dignity  was too high. Harrah's fired her. The majority holds
that Jespersen failed to raise a triable issue of fact as to
whether Harrah's policy imposes unequal burdens on men and women.
In fact, Jespersen easily satisfied her burden. A reasonable
factfinder could determine that Harrah's acted because of
Jespersen's sex under not just one theory, but two. First,
Harrah's fired Jespersen because of her failure to conform to sex
stereotypes, which is discrimination based on sex and is
therefore impermissible under Title VII. Second, Jespersen
created a triable issue of fact as to whether the policy imposed
unequal burdens on men and women, because the policy imposes a
requirement on women that is not only time-consuming and
expensive, but burdensome for its requirement that women conform
to outdated and impermissible sex stereotypes.
I
Darlene Jespersen was fired from her position as a bartender in
a sports bar at Harrah's Casino. There is no question as to why
she was fired: because she would not or could not comply with
Harrah's stringent company policy requiring female beverage
servers to wear foundation, blush, mascara, and lip color, and to
ensure that lip color is on at all times. There is also no
question that her performance was not only competent; it was
spectacular. She was consistently given glowing recommendations
by numerous customers and supervisors, despite the fact that she
did not wear makeup.
The Harrah's policy is far more stringent than simply asking
female employees to wear some makeup. The policy essentially
Page 1084
requires women to wear a uniform of makeup including at least
mascara, blush, lipstick, and foundation. In fact, according to
the "image consultant" who helped implement the policy, wearing
makeup "completes" the "uniformed look" of women beverage
servers.
All employees at Harrah's were given "image consultations" as
part of the "Personal Best" policy, which for women included a
makeover that would result in them being "properly made-up." The
post-makeover photographs are used as an "appearance measurement
tool," and each employee is held "accountable" to the photograph
"on a daily basis." Thus, while men are held accountable to look
as clean, have their hair as neat, and have their clothes as tidy
and fitted as in their photo, women are held accountable to do
all these things as well as be "properly made up," as they are in
the post-makeover photo.
II
Under Harrah's "Personal Best" policy, Jespersen was required
to wear makeup and thus conform to a sex stereotype; when she
refused, Harrah's fired her. When an employer takes an adverse
employment action against a plaintiff based on the plaintiff's
failure to conform to sex stereotypes, the employer has acted
because of sex. Price Waterhouse v. Hopkins, 490 U.S. 228, 251,
109 S.Ct. 1775, 104 L.Ed.2d 268 (1989) ("As for the legal
relevance of sex stereotyping, we are beyond the day when an
employer could evaluate employees by assuming or insisting that
they matched the stereotype associated with their group, for . . .
Congress intended to strike at the entire spectrum of
disparate treatment of men and women resulting from sex
stereotypes.") (emphasis added); see also Smith v. City of
Salem, 369 F.3d 912 (6th Cir. 2004) (holding, based on Price
Waterhouse, that the suspension of a pre-operative transsexual
employee based on his gender non-conforming appearance and
behavior is actionable under Title VII); Nichols v. Azteca Rest.
Enters., Inc., 256 F.3d 864 (9th Cir. 2001) (holding, based on
Price Waterhouse, that harassment of a male employee for
failure to act masculine enough is actionable under Title VII).
Jespersen has articulated a classic case of Price Waterhouse
discrimination and has tendered sufficient undisputed, material
facts to avoid summary judgment.
The majority attempts to distinguish this case from Price
Waterhouse and Nichols because this is not a sexual harassment
case. But neither was Price Waterhouse, in which the adverse
employment action taken against the plaintiff was that she was
denied partnership. 490 U.S. at 233, 109 S.Ct. 1775. Even if it
were, that would not matter. The question of whether an action is
"because of sex" is separate from the question of whether the
action constitutes an adverse employment action actionable under
Title VII:
Title VII does not prohibit all verbal or physical
harassment in the workplace; it is directed only at
`discriminat[ion] . . . because of . . . sex.' We
have never held that workplace harassment, even
harassment between men and women, is automatically
discrimination because of sex merely because the
words used have sexual content or connotations.
Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80,
118 S.Ct. 998, 140 L.Ed.2d 201 (1998) (quoting
42 U.S.C. § 2000e-2(a)(1)) (alterations in original). There is no grounding
whatsoever in Title VII for the notion that harassing an employee
because he or she fails to conform to a sex stereotype is
illegitimate, while firing them for the same reason is
acceptable.
The majority also suggests that Price Waterhouse only applies
in certain contexts and did not address sex-differentiated
appearance and grooming standards.
Page 1085
In Price Waterhouse v. Hopkins, the plaintiff was denied
partnership at a prestigious accounting firm where she had
excelled because she didn't act femininely enough, and was
specifically faulted for not wearing makeup. 490 U.S. at 235,
109 S.Ct. 1775. Jespersen was fired from a job she also excelled at,
for exactly the same reason. The distinction created by the
majority opinion leaves men and women in service industries, who
are more likely to be subject to policies like the Harrah's
"Personal Best" policy, without the protection that white-collar
professionals receive.
Title VII does not make exceptions for particular industries,
and we should not write them in. Pervasive discrimination often
persists within an industry with exceptional tenacity, and the
force of law is sometimes required to overcome it. See Gerdom,
692 F.2d at 606-07 (describing the history of litigation over
gender discrimination in the airline industry). When a company
acts to enforce sexual stereotypes through grooming standards, it
is not immune from Price Waterhouse liability; to the contrary,
such actions fall precisely within the heartland of Price
Waterhouse.
III
Even if Price Waterhouse did not apply in the grooming and
appearance context, Harrah's was not entitled to summary
judgment, for Jespersen created an issue of material fact as to
whether the Harrah's policy is a grooming standard that imposes
unequal burdens on men and women, in violation of Title VII.
Frank v. United Airlines, Inc., 216 F.3d 845, 855 (9th Cir.
2000); Gerdom v. Continental Airlines, Inc., 692 F.2d 602, 606
(9th Cir. 1982); see also Carroll v. Talman Federal Sav. & Loan
Ass'n of Chicago, 604 F.2d 1028, 1032 (7th Cir. 1979), cited
with approval in Frank, 216 F.3d at 855.
The majority opinion's holding that the burdens imposed by all
of Harrah's appearance policy requirements must be compared to
each other does not follow from prior caselaw permitting
employers to maintain sex-differentiated appearance standards
that do not impose unequal burdens. Under the majority opinion's
methodology, a sex-differentiated appearance requirement that
unfairly burdens women, such as a requirement that women meet
more stringent weight limits than men, Frank, 216 F.3d at 855,
could be permissible if the employer unfairly burdened men via
another sex-differentiated appearance requirement, for instance,
by requiring men to wear contacts but permitting women to wear
glasses, id.
Rather than permit all sorts of sex discrimination as long as
it "balances out" for both genders, I would instead compare
individual sex-differentiated appearance requirements that
correspond to each other, given that Title VII prohibits
employers from taking adverse employment actions "because of . . .
sex." 42 U.S.C. § 2000e-2(a)(1). Harrah's hair length
requirement and ponytail prohibition for men should be compared
to the requirement that women wear their hair "teased, curled, or
styled" every day and that their hair be "worn down" at all
times. Similarly, Harrah's requirement that men keep their hands
and fingernails clean and trimmed and not wear colored nail
polish should be compared with the rule allowing women to have
longer nails, although not of "exotic length," and allowing them
to wear clear, white, pink, or red nail polish. Finally, the
requirement that women wear makeup and lip color at all times
should be compared to the prohibition on makeup for men. If the
makeup requirement for women is compared to the clean face
requirement for men, there can be no dispute that Jespersen
created an issue of material fact as to whether the burdens
Page 1086
are unequal. "A rule which applies only to women, with no
counterpart applicable to men, may not be the basis for depriving
a female employee who is otherwise qualified of her right to
continued employment." Gerdom, 692 F.2d at 606 (quoting Allen
v. Lovejoy, 553 F.2d 522, 524 (6th Cir. 1977)).
Furthermore, the majority neglects burdens other than time and
money that are imposed by the policy. The sex-stereotyping
inherent in certain appearance standards is a burden that falls
more heavily on one sex than the other. Thus, we have recognized
that the unequal burdens test does not permit sex-differentiated
appearance standards that denigrate one gender based on sex
stereotypes. See Gerdom, 692 F.2d at 606 (quoting Carroll,
604 F.2d at 1032-33) ("In Carroll, which involved a requirement
to wear uniforms, the court noted that while there is nothing
offensive about uniforms per se, requiring only female
employees to wear them is `disparate treatment . . . demeaning to
women . . . based on offensive stereotypes prohibited by Title
VII.'").
Jespersen testified very compellingly to the burdens she
personally felt in complying with the makeup policy, explaining
that it required her to conform with a feminine stereotype that
she felt had nothing to do with making drinks. Given her stellar
customer and supervisor evaluations, Jespersen is obviously not
alone in this analysis. Sex-differentiated appearance standards
stemming from stereotypes that women are unfit for work, fulfill
a different role in the workplace, or are incapable of exercising
professional judgment systematically impose a burden on women,
converting such stereotypes into a stubborn reality. See Nevada
Dep't of Hum. Res. v. Hibbs, 538 U.S. 721, 736, 123 S.Ct. 1972,
155 L.Ed.2d 953 (2003) (noting that "mutually reinforcing
stereotypes create [] a self-fulfilling cycle of
discrimination"); see also Carroll, 604 F.2d at 1032-33, cited
in Gerdom, 692 F.2d at 606.
This is not to say that all gender-differentiated appearance
requirements are prohibited; what violates Title VII are those
that rest upon a message of gender subordination. The distinction
is apparent in the history of our caselaw on grooming and
appearance standards under Title VII. When early challenges to
requirements that men keep their hair short arose in the federal
courts, those requirements stemmed not from gender subordination,
but from fear of a youth counterculture. See Willingham v. Macon
Tel. Pub'g Co., 507 F.2d 1084, 1087, 1092 (5th Cir. 1975)
(quoting Dodge v. Giant Food, Inc., 488 F.2d 1333, 1337
(D.C. Cir. 1973)) ("Neither sex is elevated by these regulations
to an appreciably higher occupational level than the other.").
Similarly, we have held that requiring men to wear neckties is
permissible under Title VII, Fountain v. Safeway Stores Inc.,
555 F.2d 753, 755 (9th Cir. 1977). However, we have held that
requiring women to wear contacts while men may wear glasses,
Frank, 216 F.3d at 855, maintain a lower relative weight than
men, id., or wear uniforms while men wear appropriate business
attire, id. (citing Carroll, 604 F.2d at 1032), is
impermissible under Title VII.
Finally, even if all appearance requirements for men are
compared to all appearance requirements for women, and even if
the burdens engendered by sex-stereotyping are neglected, a
reasonable jury could easily conclude that having to wear
approximately as much makeup as one was wearing post-makeover, in
addition to teasing, curling, or styling one's hair every day,
constitutes more of a burden than having to keep one's hair short
and cut one's fingernails. All of these activities are ones with
which factfinders have everyday familiarity, and "summary
judgment
Page 1087
will not lie . . . if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party." Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505,
91 L.Ed.2d 202 (1986).
IV
A reasonable factfinder could conclude that the Harrah's makeup
requirement imposes an unequal burden on women, that Jespersen
was fired for failure to conform to a sex stereotype, or both.
Darlene Jespersen should be allowed to present her case to a
jury.
Therefore, I respectfully dissent.
