Court again hears case of makeup requirement

David Kravets

Thursday, June 23, 2005 | 9:15 a.m.

SAN FRANCISCO -- An appeals court heard arguments Wednesday in the case of a female casino bartender suing Harrah's Entertainment after she was fired for refusing to wear makeup.

It was the second time the 9th U.S. Circuit Court of Appeals, the largest in the nation, heard the closely watched sex-discrimination case. In December, a three-judge panel of the San Francisco-based circuit said the woman's firing was legal, because the Reno casino also demanded male employees to be equally well groomed under the hotel's "Beverage Department Image Transformation" program.

The smaller panel of judges tossed out Darlene Jespersen's case against Harrah's, ruling in December the casino company's requirement that male bartenders keep their hair short, nails trimmed and otherwise appear neatly groomed was roughly equivalent to grooming demands made of its female workers under the policy adopted in February 2000.

At the request of Jespersen, however, the appeals court agreed in May to rehear the case with 11 judges, a move that sets aside the three-judge panel's decision.

Ten of the 11 judges lobbed questions wondering whether employers could require men to wear dresses or even to wear makeup. Another judge suggested that it would be impossible for employers to have dress codes if they side with Jespersen and give her a jury trial.

Judge Alex Kozinski suggested that demanding a woman to wear makeup was "an intrusive thing for an employer to ask."

"Would you consider that a burden on yourself to do that?" Kozinski asked Patrick Hicks, Harrah's attorney.

"I don't know if it's a greater burden on men than women," Hicks replied. "You're kidding me," Kozinski said.

Hicks said the makeup policy was "to create a professional image." And Kozinski then said Harrah's position must be that women don't look professional unless they wear makeup.

"That's the bottom line," Kozinski said.

Judge Connie Callahan wondered that if the court favors Jespersen, employers would always be in court facing lawsuits. "How could an employer ever have a grooming policy, because somebody would always be unhappy with it?"

Jennifer Pizer, Jespersen's attorney, told the judges that her client was androgynous, and it was an affront to her to wear makeup.

"The women employees are being given a demeaning message that their faces aren't good enough," Pizer said.

Judge Richard Clifton asked: "How does an employer prevent a man from showing up wearing a skirt?"

The court's ruling, expected anytime, might also assist two female Atlantic City casino drink servers who in April accused Borgata Hotel Casino & Spa's weight-limit policy of forcing them off the job -- one for complaining about the policy and the other for gaining weight.

Harrah's fired Jespersen in August 2000 after 21 years of service and high-performance marks. She maintained that wearing makeup should be a personal choice and had nothing to do with her job performance.

A policy requiring women to wear makeup was put in place at 20 of the company's casinos nationwide. Male workers were forbidden to wear makeup, ponytails or hair below the top of their shirt collar under the policy.

After the hearing, the 49-year-old Jespersen told reporters that she is working two retail jobs in Reno to make ends meet. "I wanted to be taken seriously at my job. Makeup wasn't going to make me any better of a bartender," she said.

In the circuit's 2-1 ruling against Jespersen in December, Judge A. Wallace Tashima wrote that the woman had failed to prove the "policy imposes unequal burdens on male and female employees."

Judge Sidney Thomas dissented, writing that Jespersen's case should be put before a jury, because the policy "required her to conform with a feminine stereotype."