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.
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."
"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.