Jespersen v. Harrah's Operating Company, Inc. 

 

     In Jespersen v. Harrah's Operating Company, Inc.,^[1] the Ninth Circuit examined the issue of grooming and appearance standards in the workplace and considered the extent to which such standards can permissibly differ based on sex.

 

I. Factual Background

 

     The plaintiff, Darlene Jespersen, worked at Harrah's Casino in Reno, Nevada for approximately twenty years as a bartender before being fired for refusing to comply with the company's make-up policy.  While the Casino had previously maintained an informal policy of encouraging its female staff members to wear make-up, this policy was not made mandatory until February 2001, at which time Harrah's implemented the "Personal Best" program--a program instituting personal grooming and appearance standards for the Casino's beverage servers.  At a minimum, the program required servers to be "well groomed, appealing to the eye, firm and body toned."^[2] 

 

     In addition, the program required servers to adhere to certain specifically listed requirements.  (See Table "A").  Some of the enumerated requirements--notably the uniform standard of black pants, a white shirt, a black vest, and a bow tie--were sex-neutral in that they applied equally to both men and women, while other requirements, such as the requirements relating to hair, nails, and make-up, were sex-differentiated in that they applied unequally to men and women.  Jespersen objected to the make-up requirement, testifying that it made her feel "sick" and "very degraded."^[3]  Because of these factors, Jespersen refused to comply with the make-up policy and was eventually fired for her non-compliance.  Shortly thereafter, Jespersen commenced a Title VII action against Harrah's for workplace discrimination.  

 

TABLE "A": Harrah's "Personal Best" Grooming and Appearance Standards

 

Males	Females
Hair must not extend below top of shirt collar. Ponytails are prohibited.	Hair must be teased, curled, or styled every day you work. Hair must be worn down at all times, no exceptions.
Hands and fingernails must be clean and nails neatly trimmed at all times.  No colored polish is permitted	Nail polish can be clear, white, pink or red color only.  No exotic nail art or length.
Eye and facial make-up is not permitted.	Make up (face power, blush and mascara) must be worn and applied neatly in complimentary colors.  Lip color must be worn at all times.
Shoes will be solid black leather or leather type with rubber (no skid) soles.	Shoes will be solid black leather or leather type with rubber (no skid) soles.

 

II. Background on Title VII

 

     Title VII is one piece of a legislative act collectively referred to as the Civil Rights Act of 1964 ("CRA").  The CRA, first introduced by President John F. Kennedy in 1963 (See Image "B"), was intended to remove any then-existing hindrances to the full attainment of equality by all citizens.^[4]  Pursuant to this goal, the CRA included provisions on: unfair voting practices (Title I), segregation in public facilities (Title III); segregation in public education (Title IV); and workplace discrimination (Title VII).^[5]

 

     Specifically, Title VII prohibits employers from "fail[ing] or refus[ing] to hire or to discharge any individual, or otherwise to discriminate against any individual . . . because of such individual's race, color, religion, sex, or national origin."^[6]  Historically, courts' analysis of disparate treatment claims has centered on the concept of "immutable characteristics."^[7]  That is, courts typically distinguish between an employee's actions, i.e. behavior that an employee can change, and his or her "immutable characteristics," i.e. characteristics which an employee cannot change, such as race, sex, national origin, or religion; courts often defer to employer business judgment when the former is implicated.^[8]    

 

     Although Title VII provides a federal cause of action for workplace discrimination, claimants must file a claim with the Equal Employment Opportunity Commission ("EEOC") before initiating a private action.^[9]  It is only after a claimant has exhausted all of his administrative remedies with the EEOC, including attainment of a notification of a right to sue, that he or she may commence legal action in federal court. 

IMAGE "B"

 

 JFK introducing the Civil Rights Bill on June, 11 1963

 

III. Jespersen's Title VII Claim

 

     In her suit, Jespersen cited two reasons for why Harrah's "Personal Best" policy discriminated against female employees: "(1) [by] subjecting them to terms and conditions of employment to which men are not similarly subjected, and (2) [by] requiring that women conform to sex-based stereotypes as a term and condition of employment."^[10]  The trial court summarily dismissed both claims and the Ninth Circuit, sitting en banc, affirmed. 

 

A. Unequal Burdens

 

1. Legal Standard

 

     In 1973, the Supreme Court, in McDonnell Douglas Corp. v. Green, declared that in order for a plaintiff to assert a valid Title VII sex-discrimination claim he or she 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."^[11]  However, not withstanding a finding of discriminatory intent, an employer can still avoid liability if it can prove that its actions were justified on the basis of a "bona fide occupational qualification" ("BFOQ").^[12]  That is, an employer may continue to differentiate on the basis of gender if such differentiation is "reasonably necessary to the normal operation of that particular business or enterprise."^[13]  However, courts have typically interpreted this exception very narrowly.^[14]  

 

     For example, in International Union v. Johnson Controls, Inc.,^[15] the Supreme Court ruled that an employer will only succeed on a BFOQ defense if the job qualification relates to the very "essence" of the employer's business.  In International, the Court ruled refused to accept as a BFOQ a policy of barring fertile women, but not fertile men, from jobs involving lead exposure.  Although the employer had cited studies showing the harmful effects of lead exposure on unborn children, the Court refused to accept such a "moral" reason as being related to the "essence" of the company's business.^[16]  

 

 2. Application to Jespersen

 

     In Jespersen, the plaintiff argued that Harrah's make-up requirement, because it applied only to women, established a prima facie case of discriminatory intent, thus shifting the burden to Harrah's to prove a BFOQ.  The Circuit Court disagreed, determining that the program had not been discriminatory on its face and that Jespersen had failed to make an additional showing of "disparate effect."  Citing its previous case law, the Court noted that an "appearance standard that imposes different but essentially equal burdens on men and women is not disparate treatment."^[17]  Thus, according to the Court, the material issue was not whether aspects of the "Personal Best" program differentiated based on sex, but whether those differences amounted to "unequal burdens."^[18]  The Court indicated that sex-differentiated standards should be assessed for "appropriateness" and "reasonableness."^[19]

 

     However, the Court did not go so far as to say that as a matter of law sex-differentiated grooming and appearance policies can never be facially discriminatory.  To the contrary, the Court cited its prior ruling in Gerdom v. Continental Airlines,^[20] where it had held that a company policy placing strict weight restrictions on female flight attendants but not on their male counterparts was facially discriminatory because the policy, on its face, had placed an unequal burden on women.  The Court distinguished Gerdom from Jespersen in that Gerdom involved an appearance policy that applied only to women, whereas Jespersen involved a make-up requirement that was part of an overall appearance policy applying roughly equal burdens on men and women.  Moreover, the Court seemed particularly offended by Continental's own admission that the weight restriction had been part of a deliberate effort to create an image of sex appeal and service by "thin, attractive women."

 

In light of the Ninth Circuit Court's ruling in Gerdom, one might speculate that the Court would be equally perturbed by the grooming and appearance standards contained in the Hooters employee handbook, whereby it states the company's signature "look" is meant to create an image of "female sex appeal."  (See Image "C"). 

 

Image "C"

 

Exerpt from the "Hooters Employment Handbook," ^[21]

 

     Additionally, in Frank v. United Airlines, Inc.,^[22] decided just five years prior to Jespersen, the Court found a weight policy applying to both women and men to be facially discriminatory because it applied more stringently to women than to men.  For instance, women had to maintain a "medium body frame" whereas men had to maintain a "large body frame." The Court distinguished Jespersen, stating that although the "Personal Best" policy had differentiated based on sex, there was no evidence that the policy was more onerous for women as it had been in Frank.    

 

     In denying Jespersen's claim, the Court refused to take judicial notice of the fact that it takes women more money and effort to purchase and apply make up than it takes men to comply with short hair and clean nails, a fact that, had it been noted, would have tended to establish the plaintiff's assertion of "disparate effect."  One member of the dissent found the majority's refusal to take judicial notice preposterous, stating that "it doesn't take an expert witness to figure out that such items don't grow on trees."^[23]

 

     Yet, the Court's dismissal of Jespersen's claim was not a total lose, as it left open the possibility for future claimants to survive summary judgment motions if they can provide some evidence of "disparate impact."^[24]  However, the Court did not answer the question of just how much evidence a claimant must present, or at which point a grooming and appearance standard crosses the line from "reasonable" sex-based distinction to discriminatory employment practice.  For example, will a grooming and appearance standard that requires women to spend five more minutes a day getting ready amount to a showing of "disparate effect" Ten minutes? An hour?

 

     Additionally, there is the issue of whether to assess grooming and appearance standards individually, or within the context of the total policy.  In Jespersen, the majority choose the latter, concluding that "a make-up requirement must be seen in the context of the overall standards imposed on employees in a given workplace."^[25] The dissent disagreed, arguing that requirements should be evaluated individually for discrimination.^[26]

 

B. Sex-Stereotyping

 

1. Legal Standard

 

     On a related claim, Jespersen argued that the "Personal Best" policy discriminated against her by requiring her to conform to sex-based stereotypes as a term and condition of employment.  In the seminal case Price Waterhouse v. Hopkins, the Supreme Court held that "if a plaintiff in a Title VII case can prove that her gender played a part in employment decisions" the burden shifts to the defendant to  prove by a "preponderance of the evidence that it would have made the same decision even if it had not taken plaintiff's gender into account." ^[27]  That is, employment decisions must be made completely "irrelevant" of gender considerations.^[28]  

 

     To establish that gender played a role in an employment decision, the plaintiff may introduce evidence that "the employment decision was made in part because of a sex-stereotype.^[29]  In Price Waterhouse, the plaintiff succeeded in showing that she was denied partnership, at least in part, because male partners believed that she had acted too "masculine."  Thus, an employment decision was made based on a sex-stereotype of how women should behave.  As evidence of her claim, the plaintiff testified that she was chided several times for being too "aggressive" and was advised to attend "charm school.".^[30]

 

2. Application to Jespersen

 

     In Jespersen, the Court found against the plaintiff, distinguishing the facts of the case from Price Waterhouse.  For instance, the Court noted that because the "Personal Best" program had applied to all bartenders, it had not singled out Jespersen as the employment decision had in Price Waterhouse.^[31]  The Court also pointed to the unisex nature of the uniform as evidence that the policy had not been adopted to make women beverage servers "conform to a commonly-accepted stereotypical image of what women should wear."^[32]  In this way, the Court distinguished the "Personal Best" policy from other cases in which dress or appearance standards are intended to be "sexually provocative" and, thus, "tend to stereotype women as sex objects."^[33]  By way of example the Court cited EEOC v. SageRealty Corporation,^[34] where the plaintiff worked as a lobby attendant and was required to wear a uniform that was short and revealing. 

 

     However, the dissent vehemently objected to the majority's analysis by finding that that the "Personal Best" policy had been motivated by sex-stereotyping.  Particularly, the dissent criticized the majority's unwillingness to consider the make-up requirement separately.  If it had, the dissent argued, it would have determined that the make-up requirement was predicated on a stereotypical belief that "women's undoctored faces compare unfavorably to men's" and that "women's faces are incomplete, unattractive, or unprofessional without full make-up."^[35]

 

     However, similarly to the unequal burdens claim, the Court did not preclude, as a matter of law, the possibility of future claimants sustaining a viable sex-stereotyping claim on the basis of grooming and appearance policies.^[36]    

 

     In the end, the Court was not swayed by Jespersen's own subjective objection to the make-up policy, without further evidence of disparate impact, or of an improper motivation by the employer.  To rule otherwise, the Court feared, would be to "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 self-image, can create a triable issue of sex discrimination."^[37]

 

IV. Jespersen and Its Aftermath

 

A. Subsequent Cases

 

     In the aftermath of Jespersen, handed down in April of 2006, lower courts have had the opportunity to interpret the Court's decision and to apply its holding to other cases involving grooming and appearance standards.  For instance, in Mathews v. Inter-Con Securities,^[38] the plaintiff alleged discrimination on the basis of Title VII and state law after he was denied employment for refusing to comply with the company's grooming standard requiring him to cut his hair.  The Court held that the plaintiff had failed to allege any disparate effect because he, like the plaintiff in Jespersen, had only provided the Court with subjective evidence of his own objection to the grooming requirement and nothing more.  However, the Court granted the plaintiff leave to amend his complaint after he asserted that he could produce evidence of specific detrimental economic effect. 

 

     Additionally, in Rohaly v. Rainbow Playground Depot, Inc.,^[39]the Court assessed a company dress policy requiring: all employees to purchase and wear khaki pants; all men to purchase and wear "Rainbow" denim shirts; and all women to purchase and wear a navy blazer over a polo shirt.  The plaintiff refused to comply with the female-only blazer requirement, claiming that she could not afford it. Eventually the plaintiff was let go for her non-compliance and shortly thereafter she sued for sex-discrimination.  The Court upheld the policy, stating that it was not facially discriminatory.  In its reasoning, the Court employed the Jespersen method of analysis by focusing on the policy as a whole, and not on the blazer requirement separately. Thus, the Court noted that while the policy had required women to purchase a blue blazer, it had imposed roughly the same financial burden on men because it had required men to buy khakis and either a polo shirt or a denim shirt. 

 

     Thus, in the wake of Jespersen, courts have reinforced its dual holding that (1) claimants must produce objective evidence of disparate impact to create a triable issue of fact and that (2) courts will evaluate a grooming and appearance standard in light of the policy as a whole.

 

B. Relevant Commentary 

 

     Some commentators have reacted negatively to the Ninth Circuit's ruling in Jespersen, expressing concern that courts are too deferential to employer grooming and appearance standards.  For instance, in an article published in the Catholic University Law Review,^[40] Allison Steinle faults courts for not interfering more with employer's "business judgment" regarding appearance and grooming standards,^[41] especially in an age of "lookism"^[42] where employers are increasingly looking to cash in on sex appeal.  According to Steinle, courts should look beyond the "facial burdens" imposed by appearance and grooming standards and instead make "individualized determinations" as to whether the requirements are instituted "because of sex.'^[43]  In making such a determination, Steinle advocates courts using an evidentiary model that "takes into account sociological, fact-specific considerations."^[44]  

 

     According to Steinle, using such a model would ameliorate the Ninth Circuit's fear in Jespersen that invalidating an employer grooming and appearance standard based merely on an employee's subjective objection to the requirement would be tantamount to turning every personally offensive grooming and appearance standard into a "triable issue of sex discrimination."^[45].  Rather, under a "sociologically informed" inquiry, courts need only invalidate those grooming and appearance standards thought to be "interwoven with [women's] historically inferior status."^[46] Steinle suggests employing an expert to aid in such a determination.^[47]  

 

     Thus, under Steinle's theory, a court is unlikely to invalidate a simple stocking requirement because historically both men and women have worn stockings for many functional, non-sexual purposes, such as warmth, sanitation, or completing a professional look.^[48]  However, a requirement involving a more elaborate standard, such as one requiring "overtly sexual hosiery" would raise more questions.^[49]

 

     Yet, despite criticism that the Jespersen ruling falls short of providing adequate judicial protection for employees, other commentators have found a silver lining in the Court's decision.  That is, although the Court dismissed Jespersen's particular claim of sex-stereotyping, it left the door open for future claimants to bring similar claims on the basis of sex-stereotyping.^[50]  For instance, one hopeful commentator foresaw the Ninth Circuit's decision as having "significant repercussions"^[51] on casino uniform requirements.  For example, unlike in Jespersen, where the Court highlighted the sex-neutral nature of the policy's uniform requirement, casino cocktail waitress are often required to wear highly sexualized uniforms, usually consisting of "high heels, long black stockings, a tight-fitting bustier, and short-shorts."^[52]"  The overtly sexy nature of these uniforms has led at least one commentator to suggest that the uniforms "undoubtedly" stereotype women because of their sex.^[53]  (Refer to Images "E," "F" and "G").

 

Image "E"

 

 

The Rio Casino Cocktail Waitress Uniform; The original design concept emulated a cocktail dress but the result was though to be too "covered" up according to the Rio's Wardrobe Supervisor; Thus, the design was changed to include less fabric and more lace, resulting in a more "feminine allure,"  that was thought to be "appealing to guys."^[54]

 

Image "F"

 

 

The Planet Hollywood Cocktail Waitress Uniform; The uniform consists of a "push up bra" and "bare midrifff" beneath a jacket.

 

IMAGE "G"

 

 

     Equally optimistic of the Court's holding in Jespersen, are those groups who perceive themselves as "naturally falling outside conventional gender norms, " such as lesbians, gays, bisexuals, and transgendered people.^[55]Because Jespersen does not preclude, as a matter of law, claims on the basis of sex-stereotypes, such groups now have an additional weapon with which to challenge conventional notions of gender often embedded in company grooming and appearance standards. 

 

V.  Jespersen and Fashion

 

    The Jespersen case is important to fashion for several reasons.  To begin, the case highlights the inextricable role of fashion in creating and perpetuating sex-stereotypes and gender norms.  For example, in Jespersen, the Court focused on the sex-neutral nature of the uniform requirement to exclude it from the narrow purview of the Price Waterhouse decision.  In doing so, the Court distinguished the case from other cases, like SageRealty, where the Court found women's uniforms to be discriminatory because they were cut in a short and revealing manner.  These cases emphasize the power of clothing to send gender signals.  That is, the mere cut of a piece of clothing can reinforce a pre-existing gender stereotype of women as sex objects.  Similarly the choice of certain fabrics (leather or patent leather), prints (animal), and designs (see Image "E") can have the same effect.

 

     The case also highlights fashion's basic communicative function.  For instance, the Hooter's "Employment Handbook"^[56] expressly acknowledges that its uniforms are designed to communicate the message of "wholesomeness" and "athleticism," yet "sexiness."  Even beyond workplace uniforms, fashion is used on a broader level to communicate certain qualities to the world.  For instance, clothing styles, brands, logos, or jewelry--all of these things are constantly sending non-verbal signals about a person's socioeconomic status, job, age, ethnic background, sexual orientation, and even a person's favorite sports team, to the world.

 

     Additionally, Jespersen raises the interesting question of whether the idea of "fashion" has evolved beyond its traditional concept to include such non-clothing items as make-up.  For example, in Jespersen, the dissent repeatedly likened the full make-up requirement to a "facial uniform."  In this way, perhaps the modern definition of "fashion" has expanded to include not only that which is functional, but also anything that a person may use or place on his or her body.  Under such an expanded definition, one might wonder whether "fashion" can include tattoos, make-up, hair dye, or even body paint.

 

     Lastly, on a strict reading of the case, Jespersen may stand for the proposition that employer's have the ability to legally infringe upon their employee's right to self-expression.  For example, what may be a strange hair color to one person may be an integral sense of self to another.  As the dissent keenly observed, the decision to "wear cosmetics, literally the face one presents to the world--is an intensely personal choice."^[57]  Despite such critiques and hearing testimony from Darlene Jespersen that wearing make-up made her feel "demeaned," the majority still upheld Harrah's "Personal Best" policy, perhaps in an indication of its reluctance to limit an employer's ability to regulate its employees.