Case Study:
Jespersen v. Harrah’s Operating Co. 444 F.3d 1104 (9th Cir. 2006) (en banc)
A female bartender challenged the employing casino’s dress code policy of requiring females to wear makeup, specified as foundation or powder, blush, lipstick, and mascara as gender discrimination in that it imposed a greater burden on females than males. The court did not agree with her and permitted the employer’s makeup policy to stand.
Schroeder, J.
In her deposition testimony, Jespersen described the personal indignity she felt as a result of attempting to comply with the makeup policy. Jespersen testified that when she wore the makeup she “felt very degraded and very demeaned.” In addition, Jespersen testified that “it prohibited [her] from doing [her] job” because “it affected [her] self-dignity . . . [and] took away [her] credibility as an individual and as a person.” The record does not contain any affidavit or other evidence to establish that complying with the “Personal Best” standards caused burdens to fall unequally on men or women, and there is no evidence to suggest Harrah’s motivation was to stereotype the women bartenders. Jespersen relied solely on evidence that she had been a good bartender, and that she had personal objections to complying with the policy, in order to support her argument that Harrah’s “sells” and exploits its women employees.” Jespersen argues that the makeup requirement itself establishes a prima facie case of discriminatory intent and must be justified by Harrah’s as a bona fide occupational qualification. Our settled law does not support Jespersen’s position that a sex-based difference in appearance standards alone, without any further showing of disparate effects, creates a prima facie case. Here we deal with requirements that, on their face, are not more onerous for one gender than the other. Rather, Harrah’s “Personal Best” policy contains sexdifferentiated requirements regarding each employee’s hair, hands, and face. While those individual requirements differ according to gender, none on its face places a greater burden on one gender than the other. Grooming standards that appropriately differentiate between the genders are not facially discriminatory. We have long recognized that companies may differentiate between men and women in appearance and grooming policies. The material issue under our settled law is not whether the policies are different, but whether the policy imposed on the plaintiff creates an “unequal burden” for the plaintiff’s gender. Not every differentiation between the sexes in a grooming and appearance policy creates a “significantly greater burden of compliance[.]” “Where, as here, such [grooming and appearance] policies are reasonable and are imposed in an evenhanded manner on all employees, slight differences in the appearance requirements for males and females have only a negligible effect on employment opportunities.” Under established equal burdens analysis, when an employer’s grooming and appearance policy does not unreasonably burden one gender more than the other, that policy will not violate Title VII. Jespersen asks us to take judicial notice of the fact that it costs more money and takes more time for a woman to comply with the makeup requirement than it takes for a man to comply with the requirement that he keep his hair short, but these are not matters appropriate for judicial notice. Judicial notice is reserved for matters “generally known within the territorial jurisdiction of the trial court” or “capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” The time and cost of makeup and haircuts is in neither category. The facts that Jespersen would have this court judicially notice are not subject to the requisite “high degree of indisputability” generally required for such judicial notice. Jespersen did not submit any documentation or any evidence of the relative cost and time required to comply with the grooming requirements by men and women. As a result, we would have to speculate about those issues in order to then guess whether the policy creates unequal burdens for women. This would not be appropriate. Having failed to create a record establishing that the “Personal Best” policies are more burdensome for women than for men, the district court correctly granted summary judgment on the record before it with respect to Jespersen’s claim that the makeup policy created an unequal burden for women.
The stereotyping in Price Waterhouse interfered with Hopkins’ ability to perform her work; the advice that she should take “a course at charm school” was intended to discourage her use of the forceful and aggressive techniques that made her successful in the first place. Impermissible sex stereotyping was clear be3cause the very traits that she was asked to hide were the same traits considered praiseworthy in men. Harrah’s “Personal Best” policy is very different. The policy does not single out Jespersen. It applies to all of the bartenders, male and female. It requires all of the bartenders to wear exactly the same uniforms while interacting with the public in the context of the entertainment industry. It is for the most part unisex, from the black tie to the non-skid shoes. There is no evidence in this record to indicate that the policy was adopted to make women bartenders conform to a commonly-accepted stereotypical image of what women should wear. The record contains nothing to suggest the grooming standards would objectively inhibit a woman’s ability to do the job. The only evidence in the record to support the stereotyping claim is Jespersen’s own subjective reaction to the makeup requirement. We respect Jespersen’s resolve to be true to herself and to the image that she wishes to project to the world. We cannot agree, however, that her objection to the makeup requirement, without more, can give rise to a claim of sex stereotyping under Title VII. If we were to do so, we would 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. We emphasize that we do not preclude, as a matter of law, a claim of sex-stereotyping on the basis of dress or appearance codes. Others may well be filed, and any bases for such claims refined as law in this area evolves. This record, however, is devoid of any basis for permitting this particular claim to go forward, as it is limited to the subjective reaction of a single employee, and there is no evidence of a stereotypical motivation on the part of the employer. This case is essentially a challenge to one small part of what is an overall apparel, appearance, and grooming policy that applies largely the same requirements to both men and women. The touchstone is reasonableness. A makeup requirement must be seen in the context of the overall standards imposed on employees in a given workplace. Decision for Harrah’s AFFIRMED. Kozinski, C. J., with whom Graber, J. and W. Fletcher, J. join, dissenting: I believe that Jespersen also presented a triable issue of fact on the question of disparate burden. The majority is right that “the [makeup] requirements must be viewed in the context of the overall policy.” But I find it perfectly clear that Harrah’s overall grooming policy is substantially more burdensome for women than for men. Every requirement that forces men to spend time or money on their appearance has a corresponding requirement that is as, or more, burdensome for women: short hair v. “teased, curled, or styled” hair; clean trimmed nails v. nail length and color requirements; black leather shoes v. black leather shoes. The requirement that women spend time and money applying full facial makeup has no corresponding requirement for men, making the “overall policy” more burdensome for the former than for the latter. The only question is how much. It is true that Jespersen failed to present evidence about what it costs to buy makeup and how long it takes to apply it. But is there any doubt that putting on makeup costs money and takes time? Harrah’s policy requires women to apply face powder, blush, mascara and lipstick. You don’t need an expert witness to figure out that such items don’t grow on trees. Nor is there any rational doubt that application of makeup is an intricate and painstaking process that requires considerable time and care. 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. It’s hard to imagine that a woman could “put on her face,” as they say, in the time it would take a man to shave— certainly not if she were to do the careful and thorough job Harrah’s expects. Makeup, moreover, must be applied and removed every day; the policy burdens men with no such daily ritual. While a man could jog to the casino, slip into his uniform, and get right to work, a woman must travel to work so as to avoid smearing her makeup, or arrive early to put on her makeup there. It might have been tidier if Jespersen had introduced evidence as to the time and cost associated with complying with the makeup requirement, but I can understand her failure to do so, as these hardly seem like questions reasonably subject to dispute. We could—and should— take judicial notice of these incontrovertible facts. Alternatively, Jespersen did introduce evidence that she finds it burdensome to wear makeup because doing so is inconsistent with her self-image and interferes with her job performance. My colleagues dismiss this evidence, apparently on the ground that wearing makeup does not, as a matter of law, constitute a substantial burden. This presupposes that Jespersen is unreasonable or idiosyncratic in her discomfort. Why so? Whether to wear cosmetics—literally, the face one presents to the world—is an intensely personal choice. Makeup, moreover, touches delicate parts of the anatomy—the lips, the eyes, the cheeks—and can cause serious discomfort, sometimes even allergic reactions, for someone unaccustomed to wearing it. If you are used to wearing makeup—as most American women are—this may seem like no big deal. But those of us not used to wearing makeup would find a requirement that we do so highly intrusive. Imagine, for example, a rule that all judges wear face powder, blush, mascara and lipstick while on the bench. Like Jespersen, I would find such a regime burdensome and demeaning; it would interfere with my job performance. I suspect many of my colleagues would feel the same way. Everyone accepts this as a reasonable reaction from a man, but why should it be different for a woman? It is not because of anatomical differences, such as a requirement that women wear bathing suits that cover their breasts. Women’s faces, just like those of men, can be perfectly presentable without makeup; it is a cultural artifact that most women raised in the United States learn to put on— and presumably enjoy wearing—cosmetics. But cultural norms change; not so long ago a man wearing an earring was a gypsy, a pirate or an oddity. Today, a man wearing body piercing jewelry is hardly noticed. So, too, a large (and perhaps growing) number of women choose to present themselves to the world without makeup. I see no justification for forcing them to conform to Harrah’s quaint notion of what a “real woman” looks like. Nor do I think it appropriate for a court to dismiss a woman’s testimony that she finds wearing makeup degrading and intrusive, as Jespersen clearly does. Not only do we have her sworn statement to that effect, but there can be no doubt about her sincerity or the intensity of her feelings: She quit her job—a job she performed well for two decades—rather than put on the makeup. That is a choice her male colleagues were not forced to make. To me, this states a case of disparate burden, and I would let a jury decide whether an employer can force a woman to make this choice. Finally, I note with dismay the employer’s decision to let go a valued, experienced employee who had gained accolades from her customers, over what, in the end, is a trivial matter. Quality employees are difficult to find in any industry and I would think an employer would long hesitate before forcing a loyal, long-time employee to quit over an honest and heart-felt difference of opinion about a matter of personal significance to her. Having won the legal battle, I hope that Harrah’s will now do the generous and decent thing by offering Jespersen her job back, and letting her give it her personal best—without the makeup.
Q1. What do you understand the difference to be between the majority decision and the dissent?
Q2. Which decision best represents your approach? Explain.
Q3. Do you think this majority decision would have been different if the court had been composed of all or a majority of women? Discuss. How could this concept of whether the decision would be different based on the gender of the decision maker impact decision making by supervisors in the workplace?
Your answer must be typed, double-spaced, Times New Roman font (size 12), one-inch margins on all sides, APA format.