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Darlene Jespersen was an outstanding bartender at a Harrah's Entertainment casino in Reno, Nev. For 21 years she worked hard keeping sometimes-rowdy customers in-line and serving up cocktails with a smile. Not only did Jespersen excel in her position, but throughout her tenure she regularly received praise from her superiors, other employees and even those rowdy customers.

But her career with Harrah's came to a screeching halt in 2001 when the company implemented its "Beverage Department Image Transformation" program, which it referred to as the "Personal Best" policy. Under the new rules, Harrah's required, among other things, that female employees wear makeup--specifically foundation, blush, mascara and lipstick. When Jespersen refused to comply, Harrah's gave her the boot. And Jespersen sued, claiming violations of her rights under Title VII of the Civil Rights Act of 1964, which prohibits employers from discriminating against "any individual with respect to ... compensation, terms, conditions, or privileges of employment" on the basis of race, color, religion, national origin and sex.

To the surprise of many labor and employment lawyers, a trial court ruled in Harrah's favor. And on Dec. 28, 2004, the 9th Circuit upheld that decision. Jespersen's attorney has asked the circuit court to rehear the case. Now, lawyers on both sides of the table are watching closely to see what may happen next.

Harrah's Harem

In Darlene Jespersen v. Harrah's Operating Company, Inc., Jespersen claimed Harrah's violated her rights by forcing female employees to have different appearance standards than men, and said that was an illegal form of sexual discrimination called "sexual stereotyping."

Under Harrah's policy, female beverage employees must be neat and clean, tease or curl their hair, and wear nail polish and makeup at all times. Men also must be neat and clean, keep their hair above the collar, and must not wear nail polish or makeup.

The trial court agreed the standards for men and women were different, but said they were equally burdensome to both genders and ruled in Harrah's favor, and ultimately the appeals court agreed.

"I was very surprised and disappointed when I heard the 9th Circuit's decision," says Jennifer C. Pizer, Jespersen's attorney on the appeal and senior counsel for the Lambda Legal Defense and Education Fund, a gay-rights focused non-profit law firm. "It's been weeks since the decision, and I'm still in shock."

But according to Harrah's attorneys, the ruling was in sync with 30 years of case law in the 9th Circuit. "This is not a shocking decision," says Veronica Arechederra Hall, Harrah's lead counsel on the case and a shareholder in Littler Mendelson's Las Vegas office. "It reinforces and secures the rights of management to require reasonable dress and grooming standards in the workplace."

And that's what Circuit Court Judge Wallace Tashima thought as well.

"We have previously held that grooming and appearance standards that apply differently to women than men do not constitute discrimination on the basis of sex," he wrote for the majority, citing the precedent set in a 1974 case in which the court ruled that a company can require men to have short hair but allow women to have long hair.

But Judge Sydney Thomas disagreed with the majority.

"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," he wrote in his dissent. "The distinction created by the majority opinion leaves men and women in services industries, who are more likely to be subject to policies like the Harrah's 'Personal Best' policy, without the protection white collar professionals receive."

Pizer agrees.

"In our view it is perplexing that the opinion for the majority would simply decline to apply a precedent of the U.S. Supreme Court," she says, referring to a 1989 case involving a female Price Waterhouse employee. "The consequences of not applying it are so problematic that this decision is really disturbing."

Price Of Discrimination

In 1989 Price Waterhouse (now PricewaterhouseCoopers) denied a senior accountant, Ann Hopkins, partnership in the company. Price Waterhouse admitted Hopkins was qualified to be considered for partnership, and probably would have been offered the promotion if it weren't for her "interpersonal problems." The male partners who were considering her promotion thought Hopkins needed to wear more makeup, and walk and talk more femininely.

"They told her she should wear soft-hued suits and more jewelry, and they wanted her to be less aggressive," Pizer says. "Some even said she should take a course in charm school."

Hopkins sued Price Waterhouse (Price Waterhouse v. Hopkins) under Title VII, claiming sexual discrimination, specifically sexual stereotyping. The Supreme Court ruled in her favor, stating first that Price Waterhouse's judgment of Hopkins based on her femininity was an actionable form of sex discrimination, and second that the company forced her into a Catch-22-type situation in which the very qualities, such as her assertiveness, that allowed her to excel as a professional in that position were the characteristics that ultimately prevented her from being promoted.

"That is exactly the situation Darlene Jespersen has found herself in," Pizer says. In fact, in the 1990s Harrah's recommended its female beverage employees wear makeup, and Darlene gave it a try.

"But she found it seriously impaired her ability to do her job," Pizer says, adding that part of Jespersen's job often was to handle rowdy and unruly customers. "As herself, Darlene was very affective at dealing with those customers," Pizer explains. "But when required to present herself in an ultrafeminine way so drastically different from who she is, she was less able to manage the customers."

Jespersen stopped wearing makeup after only a couple of weeks. And because it

wasn't a requirement at the time, she suffered no consequences and continued to do her job well.

In Its Defense

In fact, Harrah's even admitted Jespersen was a good employee--going as far as offering her job back to her after she filed suit.

"In consideration of her long tenure with Harrah's, Darlene was offered her job back with the ability to work and not wear makeup," says Gary Thompson, spokesman for Harrah's Entertainment. "A specific exception was made in her case."

But Jespersen refused the offer. When Harrah's fired her, Jespersen was hit with substantial financial penalties from a loan she had taken from her 401(k) plan, which she was unable to repay. Although Harrah's offered her back pay when it gave her the option to return to her job, Pizer said the company didn't offer to forgive her 401(k) penalties. Furthermore, the company only offered the exemption to Jespersen but to no other female employees, and that made Jespersen feel uncomfortable.

"She is a team player, someone who respects her co-workers very much," Pizer says. "She was worried if she went back, with a special exemption to the policy which was still in place, she would be isolated and resented."

Since filing suit, Jespersen has been unable to find a bartending job in Reno. She is currently working three separate jobs in retail to make ends meet. Meanwhile, Pizer and Lambda Legal are working on getting the case reheard en banc--although circuit courts rarely agree to rehear a case.

"We're not giving up," Pizer says. "The 9th Circuit needs to harmonize the Price Waterhouse principle with the equal burden principle so that we have a clear rule that employers and employees can understand and follow."

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