Former bartender loses appeal to high court

Tuesday, June 8, 2004 | 11:24 a.m.

CARSON CITY -- A female bartender, fired from a Reno casino for failing to wear makeup, has lost her appeal to the Nevada Supreme Court.

The court Monday upheld a pre-trial summary judgment in favor of Harrah's Entertainment Inc. The company's Reno casino had dismissed Darlene Jespersen, who refused to follow a policy in 2000 that required females to wear makeup but prohibited males from doing so.

Jespersen was employed by Harrah's for more than 20 years and had received above average performance and acceptable appearance rating.

She maintained the makeup policy had been in effect before 2000 and she refused to use it because it "made her feel extremely uncomfortable ... ill and violated," said the court.

When she was terminated, she sued, losing in District Court and now in the Supreme Court.

Jespersen could not be reached for comment but her lawyer Kenneth McKenna said he was disappointed. But he said Jespersen has a civil rights case pending before the 9th U.S. Circuit Court of Appeals.

"I think we will do a lot better in the federal court on gender stereotyping," he said.

Jespersen is now in the retail business because she has not been able to get a job in the casino industry since her suit against Harrah's, McKenna said.

After she was dismissed, Jespersen sued, alleging tortious discharge, breach of employment contract and breach of implied covenant of good faith.

District Judge Brent Adams granted a summary judgment in favor of Harrah's, saying there is a public policy against employment discrimination but Jespersen failed to allege how she was terminated based on her sex.

Adams said even if the termination violated public policy, there was an adequate remedy under the state's anti-discrimination law. A person who feels they have been the victim of employment discrimination can file a complaint with the state Equal Rights Commission.

Jespersen sued on grounds the policy at Harrah's discriminates on the basis of her sex because of gender stereotyping. The Supreme Court said Nevada law does not "expressly recognize that gender stereotyping in employment violates public policy."

Jespersen was an at-will employee who could be fired without cause. But she maintained that the company allowed her to forgo wearing makeup for 20 years despite a handbook policy requiring its use.

She believed Harrah's "impliedly promised not to fire her for non-compliance with the makeup requirement, and she relied on this promise by continuing to work for Harrah's," said the court.

The court said, "... even if the non-enforcement of the policy did create an expectation that Jespersen would be continually allowed to forgo wearing makeup, this expectation is insufficient to convert an at-will employment into one allowing termination only for cause."