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Jespersen v. Harrah's Operating Co. - 444 F.3d 1104 (9th Cir. 2006)


Not every differentiation between the sexes in a grooming and appearance policy creates a significantly greater burden of compliance. Where 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 of the Civil Rights Act of 1964.


Plaintiff Darlene Jespersen was terminated from her position as a bartender at the sports bar operated by defendant Harrah's Operating Company, Inc. ("Harrah's"). Jespersen's termination occurred shortly after Harrah's began to enforce its comprehensive uniform, appearance and grooming standards for all bartenders. The standards 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. Following her termination, Jespersen filed a lawsuit in federal district court against Harrah's, claiming Harrah's grooming policy discriminated against employees on the basis of sex, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C.S. § 2000e, et seq. 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. The district 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. Jespersen appealed.


Did the grooming policy imposed by Harrah’s discriminate against employees based on sex?




The court of appeals affirmed the district court's judgment. The court held that the employer was properly granted summary judgment because the employee failed to show that the grooming policy imposed an unequal burden on women. The employer's policy contained sex-differentiated requirements regarding each employee's hair, hands, and face. While those individual requirements differed according to gender, none on its face placed a greater burden on one gender than the other. The employee also failed to show that the grooming policy was part of a policy motivated by sex stereotyping. There was no evidence that the policy was adopted to make women bartenders conform to a commonly-accepted stereotypical image of what women should wear. The record contained nothing to suggest that the grooming standards would objectively inhibit a woman's ability to do the job.

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