Jespersen v. Harrah's Operating Company, Inc.

444 F.3d 1104 (9th Cir. 2006)

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Nature of the Case

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Facts

P worked as a bartender at D for twenty years and compiled what by all accounts was an exemplary record. D maintained a policy encouraging female beverage servers to wear makeup. The policy was not enforced until 2000. In February 2000, Harrah's implemented a 'Beverage Department Image Transformation' program. The program 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. P never objected to any of these policies. The program also contained some sex-differentiated appearance requirements as to hair, nails, and makeup. D amended that policy to require that women wear makeup. P did not wear makeup on or off the job, and in her deposition stated that wearing it would conflict with her self-image. After exhausting her administrative remedies with EEOC and obtaining a right-to-sue notification, P filed this action in July 2001. P sought damages as well as declaratory and injunctive relief for discrimination and retaliation for opposition to discrimination, alleging that the 'Personal 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 condition of employment.' D moved for summary judgment. The record did 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 D's motivation was to stereotype the women bartenders. P 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 D ''sells' and exploits its women employees.' The Court granted the motion. P appealed.