Court: Making Bartenders Wear Makeup Not Discrimination

A casino company's requirement for female bartenders to wear makeup does not amount to sexual discrimination, a federal appeals court ruled Friday.

Lawyers for Harrah's Entertainment Inc. said the 7-4 ruling against Darlene Jespersen -- who was fired in 2000 for refusing to wear makeup after 21 years as a bartender at Harrah's in Reno -- affirms the right of employers to adopt reasonable dress and grooming standards.

But Jespersen's lawyers said the 9th U.S. Circuit Court of Appeals has opened the door for more anti-discrimination suits by outlining what must be proven to establish sex stereotyping through dress codes.

The court ruled that Harrah's policy burdened women no more than men, partly because men were required to cut their hair while women were not, and women had to wear makeup but men were prohibited from doing so.

"This is not a case where the dress or appearance requirement is intended to be sexually provocative and tending to stereotype women as sex objects," Chief Judge Mary M. Schroeder wrote for the majority.

The dissenting judges said the majority erred in concluding that Jespersen failed to present evidence that applying makeup was more costly and time-consuming than getting a haircut.

"Is there any doubt that putting on makeup costs money and takes time?" Judge Alex Kozinksi wrote.

"Even those of us who don't wear makeup know how long it can take from the hundreds of hours we've spent over the years frantically tapping our toes and pointing to our wrists," he said.

Jespersen had asked for the full court to hear the case after a three-member panel in 2004 upheld a similar ruling by a federal judge.

Harrah's lawyer Patrick Hicks said the decision affirms there was no evidence that company policy had either the intent or the impact of discriminating on the basis of sex.

"More importantly, the court affirmed an employer's right to adopt reasonable dress and grooming standards," he said.

Jespersen's lawyer Ken McKenna said that while she lost her case, "it is a victory for women of the future."

"She has kicked the door wide open for women in the future who feel being forced to wear layers and layers of makeup is a sexual stereotype," he said.