Jespersen v. Harrah's ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DARLENE JESPERSEN, 
Plaintiff-Appellant, No. 03-15045
v.
 D.C. No.
CV-01-00401-ECR
HARRAH’S OPERATING COMPANY,
INC., OPINION
Defendant-Appellee.

Appeal from the United States District Court
for the District of Nevada
Edward C. Reed, District Judge, Presiding
Argued and Submitted
June 22, 2005—San Francisco, California
Filed April 14, 2006
Before: Mary M. Schroeder, Chief Judge, Harry Pregerson,
Alex Kozinski, Pamela Ann Rymer, Barry G. Silverman,
Susan P. Graber, William A. Fletcher, Richard C. Tallman,
Richard R. Clifton, Consuelo M. Callahan, and
Carlos T. Bea, Circuit Judges.
Opinion by Chief Judge Schroeder;
Dissent by Judge Pregerson;
Dissent by Judge Kozinski
4115
4118 JESPERSEN v. HARRAH’S OPERATING CO.
COUNSEL
Jennifer C. Pizer, LAMBDA Legal Defense and Education
Fund, Inc., Los Angeles, California, for the plaintiff-
appellant.
JESPERSEN v. HARRAH’S OPERATING CO. 4119
Kenneth J. McKenna, Kenneth James McKenna, Inc., Reno,
Nevada, for the plaintiff-appellant.
Patrick H. Hicks, Littler Mendelson, P.C., Las Vegas,
Nevada, for the defendant-appellee.
OPINION
SCHROEDER, Chief Judge:
We took this sex discrimination case en banc in order to
reaffirm our circuit law concerning appearance and grooming
standards, and to clarify our evolving law of sex stereotyping
claims.
The plaintiff, Darlene Jespersen, was terminated from her
position as a bartender at the sports bar in Harrah’s Reno
casino not long after Harrah’s began to enforce its compre-
hensive uniform, appearance and grooming standards for all
bartenders. The standards required all bartenders, men and
women, to wear the same uniform of black pants and white
shirts, a bow tie, and comfortable black shoes. The standards
also included grooming requirements that differed to some
extent for men and women, requiring women to wear some
facial makeup and not permitting men to wear any. Jespersen
refused to comply with the makeup requirement and was
effectively terminated for that reason.
The district court granted summary judgment to Harrah’s
on the ground that the appearance and grooming policies
imposed equal burdens on both men and women bartenders
because, while women were required to use makeup and men
were forbidden to wear makeup, women were allowed to have
long hair and men were required to have their hair cut to a
length above the collar. Jespersen v. Harrah’s Operating Co.,
280 F. Supp. 2d 1189, 1192-93 (D. Nev. 2002). The district
4120 JESPERSEN v. HARRAH’S OPERATING CO.
court also held that the policy could not run afoul of Title VII
because it did not discriminate against Jespersen on the basis
of the “immutable characteristics” of her sex. Id. at 1192. The
district court further observed that the Supreme Court’s deci-
sion in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)
(plurality opinion), prohibiting discrimination on the basis of
sex stereotyping, did not apply to this case because in the dis-
trict court’s view, the Ninth Circuit had excluded grooming
standards from the reach of Price Waterhouse. Jespersen, 280
F. Supp. 2d at 1193. In reaching that conclusion, the district
court relied on Nichols v. Azteca Restaurant Enters., Inc., 256
F.3d 864, 875 n.7 (9th Cir. 2001) (“We do not imply that all
gender-based distinctions are actionable under Title VII. For
example, our decision does not imply that there is any viola-
tion of Title VII occasioned by reasonable regulations that
require male and female employees to conform to different
dress and grooming standards.”). Jespersen, 280 F. Supp. 2d
at 1193. The district court granted summary judgment to Har-
rah’s on all claims.
The three-judge panel affirmed, but on somewhat different
grounds. Jespersen v. Harrah’s Operating Co., 392 F.3d 1076(9th Cir. 2004). The panel majority held that Jespersen, on
this record, failed to show that the appearance policy imposed
a greater burden on women than on men. Id. at 1081-82. It
pointed to the lack of any affidavit in this record to support
a claim that the burdens of the policy fell unequally on men
and women. Accordingly, the panel did not agree with the dis-
trict court that grooming policies could never discriminate as
a matter of law. On the basis of Nichols and Rene v. MGM
Grand Hotel, Inc., 305 F.3d 1061 (9th Cir. 2002) (en banc),
the panel also held that Price Waterhouse could apply to
grooming or appearance standards only if the policy
amounted to sexual harassment, which would require a show-
ing that the employee suffered harassment for failure to con-
form to commonly-accepted gender stereotypes. Id. at 1082-
83. The dissent would have denied summary judgment on
both theories. Id. at 1083-88.
JESPERSEN v. HARRAH’S OPERATING CO. 4121
We agree with the district court and the panel majority that
on this record, Jespersen has failed to present evidence suffi-
cient to survive summary judgment on her claim that the pol-
icy imposes an unequal burden on women. With respect to
sex stereotyping, we hold that appearance standards, includ-
ing makeup requirements, may well be the subject of a Title
VII claim for sexual stereotyping, but that on this record Jes-
persen has failed to create any triable issue of fact that the
challenged policy was part of a policy motivated by sex
stereotyping. We therefore affirm.
I. BACKGROUND
Plaintiff Darlene Jespersen worked successfully as a bar-
tender at Harrah’s for twenty years and compiled what by all
accounts was an exemplary record. During Jespersen’s entire
tenure with Harrah’s, the company maintained a policy
encouraging female beverage servers to wear makeup. The
parties agree, however, that the policy was not enforced until
2000. In February 2000, Harrah’s implemented a “Beverage
Department Image Transformation” program at twenty Har-
rah’s locations, including its casino in Reno. Part of the pro-
gram consisted of new grooming and appearance standards,
called the “Personal Best” program. The program contained
certain appearance standards that applied equally to both
sexes, including a standard uniform of black pants, white
shirt, black vest, and black bow tie. Jespersen has never
objected to any of these policies. The program also contained
some sex-differentiated appearance requirements as to hair,
nails, and makeup.
In April 2000, Harrah’s amended that policy to require that
women wear makeup. Jespersen’s only objection here is to the
makeup requirement. The amended policy provided in rele-
vant part:
All Beverage Service Personnel, in addition to being
friendly, polite, courteous and responsive to our cus-
4122 JESPERSEN v. HARRAH’S OPERATING CO.
tomer’s needs, must possess the ability to physically
perform the essential factors of the job as set forth in
the standard job descriptions. They must be well
groomed, appealing to the eye, be firm and body
toned, and be comfortable with maintaining this look
while wearing the specified uniform. Additional fac-
tors to be considered include, but are not limited to,
hair styles, overall body contour, and degree of com-
fort the employee projects while wearing the uni-
form.
***
Beverage Bartenders and Barbacks will adhere to
these additional guidelines:
• Overall Guidelines (applied equally to male/
female):
• Appearance: Must maintain Personal
Best image portrayed at time of hire.
• Jewelry, if issued, must be worn. Other-
wise, tasteful and simple jewelry is per-
mitted; no large chokers, chains or
bracelets.
• No faddish hairstyles or unnatural colors
are permitted.
• Males:
• Hair must not extend below top of shirt
collar. Ponytails are prohibited.
• Hands and fingernails must be clean and
nails neatly trimmed at all times. No
colored polish is permitted.
JESPERSEN v. HARRAH’S OPERATING CO. 4123
• Eye and facial makeup is not permitted.
• Shoes will be solid black leather or
leather type with rubber (non skid)
soles.
• Females:
• Hair must be teased, curled, or styled
every day you work. Hair must be worn
down at all times, no exceptions.
• Stockings are to be of nude or natural
color consistent with employee’s skin
tone. No runs.
• Nail polish can be clear, white, pink or
red color only. No exotic nail art or
length.
• Shoes will be solid black leather or
leather type with rubber (non skid)
soles.
• Make up (face powder, blush and mas-
cara) must be worn and applied neatly
in complimentary colors. Lip color must
be worn at all times.
(emphasis added).
Jespersen did not wear makeup on or off the job, and in her
deposition stated that wearing it would conflict with her self-
image. It is not disputed that she found the makeup require-
ment offensive, and felt so uncomfortable wearing makeup
that she found it interfered with her ability to perform as a
bartender. Unwilling to wear the makeup, and not qualifying
for any open positions at the casino with a similar compensa-
tion scale, Jespersen left her employment with Harrah’s.
4124 JESPERSEN v. HARRAH’S OPERATING CO.
After exhausting her administrative remedies with the
Equal Employment Opportunity Commission and obtaining a
right to sue notification, Jespersen filed this action in July
2001. In her complaint, Jespersen sought damages as well as
declaratory and injunctive relief for discrimination and retali-
ation for opposition to discrimination, alleging that the “Per-
sonal Best” policy discriminated against women by “(1)
subjecting them to terms and conditions of employment to
which men are not similarly subjected, and (2) requiring that
women conform to sex-based stereotypes as a term and condi-
tion of employment.”
Harrah’s moved for summary judgment, supporting its
motion with documents giving the history and purpose of the
appearance and grooming policies. Harrah’s argued that the
policy created similar standards for both men and women, and
that where the standards differentiated on the basis of sex, as
with the face and hair standards, any burdens imposed fell
equally on both male and female bartenders.
In her deposition testimony, attached as a response to the
motion for summary judgment, Jespersen described the per-
sonal 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 “[i]t affected [her] self-
dignity . . . [and] took away [her] credibility as an individual
and as a person.” Jespersen made no cross-motion for sum-
mary judgment, taking the position that the case should go to
the jury. Her response to Harrah’s motion for summary judg-
ment relied solely on her own deposition testimony regarding
her subjective reaction to the makeup policy, and on favorable
customer feedback and employer evaluation forms regarding
her work.
The record therefore does not contain any affidavit or other
evidence to establish that complying with the “Personal Best”
JESPERSEN v. HARRAH’S OPERATING CO. 4125
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 contended that as a matter of
law she had made a prima facie showing of gender discrimi-
nation, sufficient to survive summary judgment on both of her
claims.
The district court granted Harrah’s motion for summary
judgment on all of Jespersen’s claims. Jespersen, 280 F.
Supp. 2d at 1195-96. In this appeal, Jespersen maintains that
the record before the district court was sufficient to create tri-
able issues of material fact as to her unlawful discrimination
claims of unequal burdens and sex stereotyping. We deal with
each in turn.
II. UNEQUAL BURDENS
[1] In order to assert a valid Title VII claim for sex discrim-
ination, a plaintiff must make out a prima facie case establish-
ing that the challenged employment action was either
intentionally discriminatory or that it had a discriminatory
effect on the basis of gender. McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802 (1973); Harriss v. Pan Am. World
Airways, Inc., 649 F.2d 670, 673 (9th Cir. 1980). Once a
plaintiff establishes such a prima facie case, “[t]he burden
then must shift to the employer to articulate some legitimate,
nondiscriminatory reason for the employee’s rejection.”
McDonnell, 411 U.S. at 802.
[2] In this case, Jespersen argues that the makeup require-
ment itself establishes a prima facie case of discriminatory
intent and must be justified by Harrah’s as a bona fide occu-
pational qualification. See 42 U.S.C. § 2000e-2(e)(1).1 Our
1
“[I]t shall not be an unlawful employment practice for an employer to
hire and employ employees . . . on the basis of his religion, sex, or national
4126 JESPERSEN v. HARRAH’S OPERATING CO.
settled law in this circuit, however, does not support Jesper-
sen’s position that a sex-based difference in appearance stan-
dards alone, without any further showing of disparate effects,
creates a prima facie case.
In Gerdom v. Cont’l Airlines, Inc., 692 F.2d 602 (9th Cir.
1982), we considered the Continental Airlines policy that
imposed strict weight restrictions on female flight attendants,
and held it constituted a violation of Title VII. We did so
because the airline imposed no weight restriction whatsoever
on a class of male employees who performed the same or sim-
ilar functions as the flight attendants. Id. at 610. Indeed, the
policy was touted by the airline as intended to “create the
public image of an airline which offered passengers service
by thin, attractive women, whom executives referred to as
Continental’s ‘girls.’ ” Id. at 604. In fact, Continental specifi-
cally argued that its policy was justified by its “desire to com-
pete [with other airlines] by featuring attractive female cabin
attendants[,]” a justification which this court recognized as
“discriminatory on its face.” Id. at 609. The weight restriction
was part of an overall program to create a sexual image for
the airline. Id. at 604.
[3] In contrast, this case involves an appearance policy that
applied to both male and female bartenders, and was aimed at
creating a professional and very similar look for all of them.
All bartenders wore the same uniform. The policy only differ-
entiated as to grooming standards.
In Frank v. United Airlines, Inc., 216 F.3d 845 (9th Cir.
2000), we dealt with a weight policy that applied different
standards to men and women in a facially unequal way. The
women were forced to meet the requirements of a medium
origin in those certain instances where religion, sex, or national origin is
a bona fide occupational qualification reasonably necessary to the normal
operation of that particular business or enterprise[.]”
JESPERSEN v. HARRAH’S OPERATING CO. 4127
body frame standard while men were required to meet only
the more generous requirements of a large body frame stan-
dard. Id. at 854. In that case, we recognized that “[a]n appear-
ance standard that imposes different but essentially equal
burdens on men and women is not disparate treatment.” Id.The United weight policy, however, did not impose equal bur-
dens. On its face, the policy embodied a requirement that cat-
egorically “ ‘applie[d] less favorably to one gender[,]’ ” and
the burdens imposed upon that gender were obvious from the
policy itself. Id. (quoting Gerdom, 692 F.2d at 608 (alteration
omitted)).
[4] This case stands in marked contrast, for 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 sex-differentiated 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. Groom-
ing standards that appropriately differentiate between the gen-
ders are not facially discriminatory.
[5] We have long recognized that companies may differen-
tiate between men and women in appearance and grooming
policies, and so have other circuits. See, e.g., Fountain v.
Safeway Stores, Inc., 555 F.2d 753, 755 (9th Cir. 1977);
Barker v. Taft Broad. Co., 549 F.2d 400, 401 (6th Cir. 1977);
Earwood v. Cont’l Southeastern Lines, Inc., 539 F.2d 1349,
1350 (4th Cir. 1976); Longo v. Carlisle DeCoppet & Co., 537
F.2d 685, 685 (2d Cir. 1976) (per curiam); Knott v. Mo. Pac.
R.R. Co., 527 F.2d 1249, 1252 (8th Cir. 1975); Willingham v.
Macon Tel. Publ’g Co., 507 F.2d 1084, 1092 (5th Cir. 1975)
(en banc); Baker v. Cal. Land Title Co., 507 F.2d 895, 896
(9th Cir. 1974); Dodge v. Giant Food, Inc., 488 F.2d 1333,
1337 (D.C. Cir. 1973). 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. See Frank, 216 F.3d at 854-55; Ger-
4128 JESPERSEN v. HARRAH’S OPERATING CO.
dom, 692 F.2d at 605-06; see also Fountain, 555 F.2d at 755-
56.
[6] Not every differentiation between the sexes in a groom-
ing and appearance policy creates a “significantly greater bur-
den of compliance[.]” Gerdom, 692 F.2d at 606. For example,
in Fountain, this court upheld Safeway’s enforcement of its
sex-differentiated appearance standard, including its require-
ment that male employees wear ties, because the company’s
actions in enforcing the regulations were not “overly burden-
some to its employees[.]” 555 F.2d at 756; see also Baker,
507 F.2d at 898. Similarly, as the Eighth Circuit has recog-
nized, “[w]here, as here, such [grooming and appearance] pol-
icies 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.” Knott, 527 F.2d at 1252.
Under established equal burdens analysis, when an employ-
er’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 com-
ply 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 ter-
ritorial jurisdiction of the trial court” or “capable of accurate
and ready determination by resort to sources whose accuracy
cannot reasonably be questioned.” Fed. R. Evid. 201. 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.
Fed. R. Evid. 201 advisory committee’s note.
Our rules thus provide that a plaintiff may not cure her fail-
ure to present the trial court with facts sufficient to establish
JESPERSEN v. HARRAH’S OPERATING CO. 4129
the validity of her claim by requesting that this court take
judicial notice of such facts. See id.; see also Fed. R. Civ.
Proc. 56(e). Those rules apply here. 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 appro-
priate. See, e.g., Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 249 (1986) (“[T]here is no issue for trial unless there is
sufficient evidence favoring the nonmoving party for a jury to
return a verdict for that party.”); Steckl v. Motorola, Inc., 703
F.2d 392, 393 (9th Cir. 1983) (“A party opposing a summary
judgment motion must produce specific facts showing that
there remains a genuine factual issue for trial and evidence
significantly probative as to any material fact claimed to be
disputed.”) (internal quotation marks and alteration omitted);
cf. Lindahl v. Air France, 930 F.2d 1434, 1437 (9th Cir. 1991)
(In a Title VII case, “a plaintiff cannot defeat summary judg-
ment simply by making out a prima facie case.”).
[7] Having failed to create a record establishing that the
“Personal Best” policies are more burdensome for women
than for men, Jespersen did not present any triable issue of
fact. 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.
III. SEX STEREOTYPING
In Price Waterhouse, the Supreme Court considered a
mixed-motive discrimination case. 490 U.S. 228 (1989).
There, the plaintiff, Ann Hopkins, was denied partnership in
the national accounting firm of Price Waterhouse because
some of the partners found her to be too aggressive. Id. at
234-36. While some partners praised Hopkins’s “ ‘strong
character, independence and integrity[,]’ ” others commented
that she needed to take “ ‘a course at charm school[.]’ ” Id. at
4130 JESPERSEN v. HARRAH’S OPERATING CO.
234-35. The Supreme Court determined that once a plaintiff
has established that gender played “a motivating part in an
employment decision, the defendant may avoid a finding of
liability only by proving by a preponderance of the evidence
that it would have made the same decision even if it had not
taken the plaintiff’s gender into account.” Id. at 258.
[8] Consequently, in establishing that “gender played a
motivating part in an employment decision,” a plaintiff in a
Title VII case may introduce evidence that the employment
decision was made in part because of a sex stereotype. Id. at
250-51. According to the Court, this is because “we are
beyond the day when an employer could evaluate employees
by assuming or insisting that they matched the stereotype
associated with their group, for ‘in forbidding employers to
discriminate against individuals because of their sex, Con-
gress intended to strike at the entire spectrum of disparate
treatment of men and women resulting from sex stereo-
types.’ ” Id. at 251 (quoting Los Angeles Dept. of Water &
Power v. Manhart, 435 U.S. 702, 707 n.13 (1978) (alteration
omitted)). It was therefore impermissible for Hopkins’s
employer to place her in an untenable Catch-22: she needed
to be aggressive and masculine to excel at her job, but was
denied partnership for doing so because of her employer’s
gender stereotype. Instead, Hopkins was advised to “ ‘walk
more femininely, talk more femininely, dress more femi-
ninely, wear make up, have her hair styled, and wear jewel-
ry.’ ” Id. at 235.
The stereotyping in Price Waterhouse interfered with Hop-
kins’ 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. Id. at 251. Impermissible sex
stereotyping was clear because the very traits that she was
asked to hide were the same traits considered praiseworthy in
men.
JESPERSEN v. HARRAH’S OPERATING CO. 4131
[9] 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 abil-
ity 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.
Judge Pregerson’s dissent improperly divides the grooming
policy into separate categories of hair, hands, and face, and
then focuses exclusively on the makeup requirement to con-
clude that the policy constitutes sex stereotyping. See Judge
Pregerson Dissent at 4139. This parsing, however, conflicts
with established grooming standards analysis. See, e.g., Knott
v. Mo. Pac. R. Co., 527 F.2d at 1252 (“Defendant’s hair
length requirement for male employees is part of a compre-
hensive personal grooming code applicable to all employ-
ees.”) (emphasis added). The requirements must be viewed in
the context of the overall policy. The dissent’s conclusion that
the unequal burdens analysis allows impermissible sex stereo-
typing to persist if imposed equally on both sexes, see Judge
Pregerson Dissent at 4138-39, is wrong because it ignores the
protections of Price Waterhouse our decision preserves. If a
grooming standard imposed on either sex amounts to imper-
missible stereotyping, something this record does not estab-
lish, a plaintiff of either sex may challenge that requirement
under Price Waterhouse.
[10] 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
4132 JESPERSEN v. HARRAH’S OPERATING CO.
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.
This is not a case where the dress or appearance require-
ment is intended to be sexually provocative, and tending to
stereotype women as sex objects. See, e.g., EEOC v. Sage
Realty Corp., 507 F. Supp. 599 (S.D.N.Y. 1981). In Sage
Realty, the plaintiff was a lobby attendant in a hotel that
employed only female lobby attendants and required a manda-
tory uniform. The uniform was an octagon designed with an
opening for the attendant’s head, to be worn as a poncho, with
snaps at the wrists and a tack on each side of the poncho,
which was otherwise open. Id. at 604. The attendants wore
blue dancer pants as part of the uniform but were prohibited
from wearing a shirt, blouse, or skirt under the outfit. Id.There, the plaintiff was required to wear a uniform that was
“short and revealing on both sides [such that her] thighs and
portions of her buttocks were exposed.” Id. Jespersen, in con-
trast, was asked only to wear a unisex uniform that covered
her entire body and was designed for men and women. The
“Personal Best” policy does not, on its face, indicate any dis-
criminatory or sexually stereotypical intent on the part of Har-
rah’s.
Nor is this a case of sexual harassment. See Rene v. MGM
Grand Hotel, Inc., 305 F.3d 1061, 1068-69 (9th Cir. 2002) (en
banc); Nichols v. Azteca Restaurant Enters., Inc., 256 F.3d
864, 874 (9th Cir. 2001). Following Price Waterhouse, our
court has held that sexual harassment of an employee because
of that employee’s failure to conform to commonly-accepted
gender stereotypes is sex discrimination in violation of Title
VII. In Nichols, a male waiter was systematically abused for
failing to act “as a man should act,” for walking and carrying
his tray “like a woman,” and was derided for not having sex-
JESPERSEN v. HARRAH’S OPERATING CO. 4133
ual intercourse with a female waitress who was his friend.
Nichols, 256 F.3d at 874. Applying Price Waterhouse, our
court concluded that this harassment was actionable discrimi-
nation because of the plaintiff’s sex. Id. at 874-75. In Rene,
the homosexual plaintiff stated a Title VII sex stereotyping
claim because he endured assaults “of a sexual nature” when
Rene’s co-workers forced him to look at homosexual pornog-
raphy, gave him sexually-oriented “joke” gifts and harassed
him for behavior that did not conform to commonly-accepted
male stereotypes. Rene, 305 F.3d at 1064-65. Nichols and
Rene are not grooming standards cases, but provide the frame-
work for this court’s analysis of when sex stereotyping rises
to the level of sex discrimination for Title VII purposes.
Unlike the situation in both Rene and Nichols, Harrah’s
actions have not condoned or subjected Jespersen to any form
of alleged harassment. It is not alleged that the “Personal
Best” policy created a hostile work environment.
Nor is there evidence in this record that Harrah’s treated
Jespersen any differently than it treated any other bartender,
male or female, who did not comply with the written groom-
ing standards applicable to all bartenders. Jespersen’s claim
here materially differs from Hopkins’ claim in Price Water-
house because Harrah’s grooming standards do not require
Jespersen to conform to a stereotypical image that would
objectively impede her ability to perform her job requirements
as a bartender.
[11] 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 stereotypi-
cal motivation on the part of the employer. This case is essen-
tially a challenge to one small part of what is an overall
apparel, appearance, and grooming policy that applies largely
4134 JESPERSEN v. HARRAH’S OPERATING CO.
the same requirements to both men and women. As we said
in Nichols, in commenting on grooming standards, the touch-
stone is reasonableness. A makeup requirement must be seen
in the context of the overall standards imposed on employees
in a given workplace.
AFFIRMED.
PREGERSON, Circuit Judge, with whom Judges KOZINSKI,
GRABER, and W. FLETCHER join, dissenting:
I agree with the majority that appearance standards and
grooming policies may be subject to Title VII claims. I also
agree with the majority that a Title VII plaintiff challenging
appearance standards or grooming policies may “make out a
prima facie case [by] establishing that the challenged employ-
ment action was either intentionally discriminatory or that it
had a discriminatory effect on the basis of gender.” Maj. Op.
at 4125 (emphasis added). In other words, I agree with the
majority that a Title VII plaintiff may make out a prima facie
case by showing that the challenged policy either was moti-
vated in part “because of a sex stereotype,” Maj. Op. at 4130,
or “creates an ‘unequal burden’ for the plaintiff’s gender,”
Maj. Op. at 4127. Finally, I agree with the majority that Jes-
persen failed to introduce sufficient evidence to establish that
Harrah’s “Personal Best” program created an undue burden
on Harrah’s female bartenders.1 I part ways with the majority,
however, inasmuch as I believe that the “Personal Best” pro-
1
I have little doubt that Jespersen could have made some kind of a
record in order to establish that the “Personal Best” policies are more bur-
densome for women than for men. The cost of makeup and time needed
to apply it can both be quantified as can, for example, the cost of haircuts
and time needed for nail trimming; had a record been offered in this case
to establish the alleged undue burden on women, the district court could
have evaluated it. Having failed to create such a record, Jespersen did not
present any triable issue of fact on this issue.
JESPERSEN v. HARRAH’S OPERATING CO. 4135
gram was part of a policy motivated by sex stereotyping and
that Jespersen’s termination for failing to comply with the
program’s requirements was “because of” her sex. Accord-
ingly, I dissent from Part III of the majority opinion and from
the judgment of the court.
The majority contends that it is bound to reject Jespersen’s
sex stereotyping claim because she presented too little evi-
dence — only her “own subjective reaction to the makeup
requirement.” Maj. Op. at 4131. I disagree. Jespersen’s evi-
dence showed that Harrah’s fired her because she did not
comply with a grooming policy that imposed a facial uniform
(full makeup) on only female bartenders. Harrah’s stringent
“Personal Best” policy required female beverage servers to
wear foundation, blush, mascara, and lip color, and to ensure
that lip color was on at all times. Jespersen and her female
colleagues were required to meet with professional image
consultants who in turn created a facial template for each
woman. Jespersen was required not simply to wear makeup;
in addition, the consultants dictated where and how the
makeup had to be applied.
Quite simply, her termination for failing to comply with a
grooming policy that imposed a facial uniform on only female
bartenders is discrimination “because of” sex. Such discrimi-
nation is clearly and unambiguously impermissible under
Title VII, which requires that “gender must be irrelevant to
employment decisions.” Price Waterhouse v. Hopkins, 490
U.S. 228, 240 (1989) (plurality opinion) (emphasis added).2
2
Title VII identifies only one circumstance in which employers may
take gender into account in making an employment decision — namely,
“when gender is a ‘bona fide occupational qualification [(BFOQ)] reason-
ably necessary to the normal operation of th[e] particular business or
enterprise.’ ” Price Waterhouse, 490 U.S. at 242 (alterations in original)
(quoting 42 U.S.C. § 2000e-2(e)); see also Dothard v. Rawlinson, 433
U.S. 321, 334 (1977) (recognizing that the BFOQ was meant to be an
extremely narrow exception to the general prohibition of discrimination on
4136 JESPERSEN v. HARRAH’S OPERATING CO.
Notwithstanding Jespersen’s failure to present additional
evidence, little is required to make out a sex-stereotyping —
as distinct from an undue burden — claim in this situation. In
Price Waterhouse, the Supreme Court held that an employer
may not condition employment on an employee’s confor-
mance to a sex stereotype associated with their gender. Id. at
250-51. As the majority recognizes, Price Waterhouse allows
a Title VII plaintiff to “introduce evidence that the employ-
ment decision was made in part because of a sex stereotype.”
Maj. Op. at 4130; see also Price Waterhouse, 490 U.S. at 277(O’Connor, J., concurring) (requiring that a plaintiff show
“direct evidence that decisionmakers placed substantial nega-
tive reliance on an illegitimate criterion in reaching their deci-
sion”). It is not entirely clear exactly what this evidence must
be, but nothing in Price Waterhouse suggests that a certain
type or quantity of evidence is required to prove a prima facie
case of discrimination. Cf. Desert Palace, Inc. v. Costa, 539
U.S. 90, 98-102 (2003) (holding that a plaintiff may prove
discrimination in a Title VII case using either direct or cir-
cumstantial evidence and that, to obtain a mixed-motive
instruction, the plaintiff need only present evidence sufficient
for a reasonable jury to conclude, by a preponderance of the
evidence, that sex was a motivating factor for an employment
practice).
Moreover, Price Waterhouse recognizes that gender dis-
crimination may manifest itself in stereotypical notions as to
how women should dress and present themselves, not only as
to how they should behave. See 490 U.S. at 235 (noting that
the basis of sex). Harrah’s has not attempted to defend the “Personal Best”
makeup requirement as a BFOQ. In fact, there is little doubt that the “Per-
sonal Best” policy is not a business necessity, as Harrah’s quietly disposed
of this policy after Jespersen filed this suit. Regardless, although a BFOQ
is a defense that an employer may raise, see Passantino v. Johnson &
Johnson Consumer Prods., Inc., 212 F.3d 493, 515 (9th Cir. 2000), it does
not preclude the employee from demonstrating the elements of a prima
facie case of discrimination and presenting her case to a jury.
JESPERSEN v. HARRAH’S OPERATING CO. 4137
the plaintiff was told that her consideration for partnership
would be enhanced if, among other things, she “dress[ed]
more femininely, [wore] make-up, [had] her hair styled, and
[wore] jewelry”); see also Dawson v. Bumble & Bumble, 398
F.3d 211, 221 (2d Cir. 2005) (recognizing that one can fail to
conform to gender stereotypes either through behavior or
through appearance); Smith v. City of Salem, 378 F.3d 566,
574 (6th Cir. 2004) (“After Price Waterhouse, an employer
who discriminates against women because, for instance, they
do not wear dresses or makeup, is engaging in sex discrimina-
tion because the discrimination would not occur but for the
victim’s sex.”); Doe v. City of Belleville, 119 F.3d 563, 582
(7th Cir. 1997) (rejecting the defendant’s argument that Price
Waterhouse does not apply to personal appearance standards),
vacated and remanded on other grounds, 523 U.S. 1001(1998).
Hopkins, the Price Waterhouse plaintiff, offered individu-
alized evidence, describing events in which she was subjected
to discriminatory remarks. However, the Court did not state
that such evidence was required. To the contrary, the Court
noted that
By focusing on Hopkins’ specific proof . . . we do
not suggest a limitation on the possible ways of
proving that stereotyping played a motivating role in
an employment decision, and we refrain from decid-
ing here which specific facts, ‘standing alone,’
would or would not establish a plaintiff’s case, since
such a decision is unnecessary in this case.
Price Waterhouse, 490 U.S. at 251-52; see also id. at 271(O’Connor, J., concurring) (recognizing that “direct evidence
of intentional discrimination is hard to come by”). The fact
that Harrah’s required female bartenders to conform to a sex
stereotype by wearing full makeup while working is not in
dispute, and the policy is described at length in the majority
opinion. See Maj. Op. at 4122-23. This policy did not, as the
4138 JESPERSEN v. HARRAH’S OPERATING CO.
majority suggests, impose a “grooming, apparel, or appear-
ance requirement that an individual finds personally offen-
sive,” Maj. Op. at 4132, but rather one that treated Jespersen
differently from male bartenders “because of” her sex. I
believe that the fact that Harrah’s designed and promoted a
policy that required women to conform to a sex stereotype by
wearing full makeup is sufficient “direct evidence” of dis-
crimination.
The majority contends that Harrah’s “Personal Best”
appearance policy is very different from the policy at issue in
Price Waterhouse in that it applies to both men and women.
See Maj. Op. at 4131 (“[The Personal Best policy] applies to
all of the bartenders, male and female. It requires all of the
bartenders to wear exactly the same uniforms while interact-
ing with the public in the context of the entertainment indus-
try.”) I disagree. As the majority concedes, “Harrah’s
‘Personal Best’ policy contains sex-differentiated require-
ments regarding each employee’s hair, hands, and face.” Maj.
Op. at 4127. The fact that a policy contains sex-differentiated
requirements that affect people of both genders cannot excuse
a particular requirement from scrutiny. By refusing to con-
sider the makeup requirement separately, and instead stressing
that the policy contained some gender-neutral requirements,
such as color of clothing, as well as a variety of gender-
differentiated requirements for “hair, hands, and face,” the
majority’s approach would permit otherwise impermissible
gender stereotypes to be neutralized by the presence of a ste-
reotype or burden that affects people of the opposite gender,
or by some separate non-discriminatory requirement that
applies to both men and women. By this logic, it might well
have been permissible in Frank v. United Airlines, Inc., 216
F.3d 845 (9th Cir. 2000), to require women, but not men, to
meet a medium body frame standard if that requirement were
imposed as part of a “physical appearance” policy that also
required men, but not women, to achieve a certain degree of
upper body muscle definition. But the fact that employees of
both genders are subjected to gender-specific requirements
JESPERSEN v. HARRAH’S OPERATING CO. 4139
does not necessarily mean that particular requirements are not
motivated by gender stereotyping.
Because I believe that we should be careful not to insulate
appearance requirements by viewing them in broad catego-
ries, such as “hair, hands, and face,” I would consider the
makeup requirement on its own terms. Viewed in isolation —
or, at the very least, as part of a narrower category of require-
ments affecting employees’ faces — the makeup or facial uni-
form requirement becomes closely analogous to the uniform
policy held to constitute impermissible sex stereotyping in
Carroll v. Talman Federal Savings & Loan Ass’n of Chicago,
604 F.2d 1028, 1029 (7th Cir. 1979). In Carroll, the defen-
dant bank required women to wear employer-issued uniforms,
but permitted men to wear business attire of their own choos-
ing. The Seventh Circuit found this rule discriminatory
because it suggested to the public that the uniformed women
held a “lesser professional status” and that women could not
be trusted to choose appropriate business attire. Id. at 1032-
33.
Just as the bank in Carroll deemed female employees inca-
pable of achieving a professional appearance without assigned
uniforms, Harrah’s regarded women as unable to achieve a
neat, attractive, and professional appearance without the facial
uniform designed by a consultant and required by Harrah’s.
The inescapable message is that women’s undoctored faces
compare unfavorably to men’s, not because of a physical dif-
ference between men’s and women’s faces, but because of a
cultural assumption — and gender-based stereotype — that
women’s faces are incomplete, unattractive, or unprofessional
without full makeup. We need not denounce all makeup as
inherently offensive, just as there was no need to denounce all
uniforms as inherently offensive in Carroll, to conclude that
requiring female bartenders to wear full makeup is an imper-
missible sex stereotype and is evidence of discrimination
because of sex. Therefore, I strongly disagree with the majori-
ty’s conclusion that there “is no evidence in this record to
4140 JESPERSEN v. HARRAH’S OPERATING CO.
indicate that the policy was adopted to make women bartend-
ers conform to a commonly-accepted stereotypical image of
what women should wear.” Maj. Op. at 4131.
I believe that Jespersen articulated a classic case of Price
Waterhouse discrimination and presented undisputed, material
facts sufficient to avoid summary judgment. Accordingly, Jes-
persen should be allowed to present her case to a jury.
Therefore, I respectfully dissent.
KOZINSKI, Circuit Judge, with whom Judges GRABER and
W. FLETCHER join, dissenting:
I agree with Judge Pregerson and join his dissent—subject
to one caveat: I believe that Jespersen also presented a triable
issue of fact on the question of disparate burden.
The majority is right that “[t]he [makeup] requirements
must be viewed in the context of the overall policy.” Maj. at
4131; see also id. at 4133-34. But I find it perfectly clear that
Harrah’s overall grooming policy is substantially more bur-
densome 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. See id. at 4122-23. 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
JESPERSEN v. HARRAH’S OPERATING CO. 4141
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 consider-
able 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 evi-
dence 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. See maj. at 4124. 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
4142 JESPERSEN v. HARRAH’S OPERATING CO.
someone unaccustomed to wearing it. If you are used to wear-
ing 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 Jesper-
sen, 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
JESPERSEN v. HARRAH’S OPERATING CO. 4143
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 signifi-
cance to her. Having won the legal battle, I hope that Harrah’s
will now do the generous and decent thing by offering Jesper-
sen her job back, and letting her give it her personal best—
without the makeup.