Darlene Jespersen v. Harrah's Operating Company, Inc.

THOMAS, Circuit Judge,

dissenting.

I respectfully dissent.

Harrah’s required Darlene Jespersen to wear makeup to work. She refused because the cost — measured in time, money, and personal dignity — was too high. Har-rah’s fired her. The majority holds that Jespersen failed to raise a triable issue of fact as to whether Harrah’s policy imposes unequal burdens on men and women. In fact, Jespersen easily satisfied her burden. A reasonable factfinder could determine that Harrah’s acted because of Jespersen’s sex under not just one theory, but two. First, Harrah’s fired Jespersen because of her failure to conform to sex stereotypes, which is discrimination based on sex and is therefore impermissible under Title VII. Second, Jespersen created a triable issue of fact as to whether the policy imposed unequal burdens on men and women, because the policy imposes a requirement on women that is not only time-consuming and expensive, but burdensome for its requirement that women conform to outdated and impermissible sex stereotypes.

I

Darlene Jespersen was fired from her position as a bartender in a sports bar at Harrah’s Casino. There is no question as to why she was fired: because she would not or could not comply with Harrah’s stringent company policy requiring female beverage servers to wear foundation, blush, mascara, and lip color, and to ensure that lip color is on at all times. There is also no question that her performance was not only competent; it was spectacular. She was consistently given glowing recommendations by numerous customers and supervisors, despite the fact that she did not wear makeup.

The Harrah’s policy is far more stringent than simply asking female employees to wear some makeup. The policy essen*1084tially requires women to wear a uniform of makeup including at least mascara, blush, lipstick, and foundation. In fact, according to the “image consultant” who helped implement the policy, wearing makeup “completes” the “uniformed look” of women beverage servers.

All employees at Harrah’s were given “image consultations” as part of the “Personal Best” policy, which for women included a makeover that would result in them being “properly made-up.” The post-makeover photographs are used as an “appearance measurement tool,” and each employee is held “accountable” to the photograph “on a daily basis.” Thus, while men are held accountable to look as clean, have their hair as neat, and have their clothes as tidy and fitted as in their photo, women are held accountable to do all these things as well as be “properly made up,” as they are in the post-makeover photo.

II

Under Harrah’s “Personal Best” policy, Jespersen was required to wear makeup and thus conform to a sex stereotype; when she refused, Harrah’s fired her. When an employer takes an adverse employment action against a plaintiff based on the plaintiffs failure to conform to sex stereotypes, the employer has acted because of sex. Price Waterhouse v. Hopkins, 490 U.S. 228, 251, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989) (“As for the legal relevance of sex stereotyping, 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 ... Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.”) (emphasis added); see also Smith v. City of Salem, 369 F.3d 912 (6th Cir.2004) (holding, based on Price Waterhouse, that the suspension of a pre-operative transsexual employee based on his gender non-conforming appearance and behavior is actionable under Title VII); Nichols v. Azteca Rest. Enters., Inc., 256 F.3d 864 (9th Cir.2001) (holding, based on Price Waterhouse, that harassment of a male employee for failure to act masculine enough is actionable under Title VII). Jespersen has articulated a classic case of Price Waterhouse discrimination and has tendered sufficient undisputed, material facts to avoid summary judgment.

The majority attempts to distinguish this case from Price Waterhouse and Nichols because this is not a sexual harassment case. But neither was Price Waterhouse, in which the adverse employment action taken against the plaintiff was that she was denied partnership. 490 U.S. at 233, 109 S.Ct. 1775. Even if it were, that would not matter. The question of whether an action is “because of sex” is separate from the question of whether the action constitutes an adverse employment action actionable under Title VII:

Title VII does not prohibit all verbal or physical harassment in the workplace; it is directed only at ‘discrimination] ... because of ... sex.’ We have never held that workplace harassment, even harassment between men and women, is automatically discrimination because of sex merely because the words used have sexual content or connotations.

Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998) (quoting 42 U.S.C. § 2000e-2(a)(1)) (alterations in original). There is no grounding whatsoever in Title VII for the notion that harassing an employee because he or she fails to conform to a sex stereotype is illegitimate, while firing them for the same reason is acceptable.

The majority also suggests that Price Waterhouse only applies in certain contexts and did not address sex-differentiated appearance and grooming standards. *1085In Price Waterhouse v. Hopkins, the plaintiff was denied partnership at a prestigious accounting firm where she had excelled because she didn’t act femininely enough, and was specifically faulted for not wearing makeup. 490 U.S. at 235, 109 S.Ct. 1775. Jespersen was fired from a job she also excelled at, for exactly the same reason. The distinction created by the majority opinion leaves men and women in service industries, who are more likely to be subject to policies like the Harrah’s “Personal Best” policy, without the protection that white-collar professionals receive.

Title VII does not make exceptions for particular industries, and we should not write them in. Pervasive discrimination often persists within an industry with exceptional tenacity, and the force of law is sometimes required to overcome it. See Gerdom, 692 F.2d at 606-07 (describing the history of litigation over gender discrimination in the airline industry). When a company acts to enforce sexual stereotypes through grooming standards, it is not immune from Price Waterhouse liability; to the contrary, such actions fall precisely within the heartland of Price Water-house.

Ill

Even if Price Waterhouse did not apply in the grooming and appearance context, Harrah’s was not entitled to summary judgment, for Jespersen created an issue of material fact as to whether the Harrah’s policy is a grooming standard that imposes unequal burdens on men and women, in violation of Title VII. Frank v. United Airlines, Inc., 216 F.3d 845, 855 (9th Cir.2000); Gerdom v. Continental Airlines, Inc., 692 F.2d 602, 606 (9th Cir.1982); see also Carroll v. Talman Federal Sav. & Loan Ass’n of Chicago, 604 F.2d 1028, 1032 (7th Cir.1979), cited with approval in Frank, 216 F.3d at 855.

The majority opinion’s holding that the burdens imposed by all of Harrah’s appearance policy requirements must be compared to each other does not follow from prior caselaw permitting employers to maintain sex-differentiated appearance standards that do not impose unequal burdens. Under the majority opinion’s methodology, a sex-differentiated appearance requirement that unfairly burdens women, such as a requirement that women meet more stringent weight limits than men, Frank, 216 F.3d at 855, could be permissible if the employer unfairly burdened men via another sex-differentiated appearance requirement, for instance, by requiring men to wear contacts but permitting women to wear glasses, id.

Rather than permit all sorts of sex discrimination as long as it “balances out” for both genders, I would instead compare individual sex-differentiated appearance requirements that correspond to each other, given that Title VII prohibits employers from taking adverse employment actions “because of ... sex.” 42 U.S.C. § 2000e-2(a)(l). Harrah’s hair length requirement and ponytail prohibition for men should be compared to the requirement that women wear their hair “teased, curled, or styled” every day and that their hair be “worn down” at all times. Similarly, Harrah’s requirement that men keep their hands and fingernails clean and trimmed and not wear colored nail polish should be compared with the rule allowing women to have longer nails, although not of “exotic length,” and allowing them to wear clear, white, pink, or red nail polish. Finally, the requirement that women wear makeup and lip color at all times should be compared to the prohibition on makeup for men. If the makeup requirement for women is compared to the clean face requirement for men, there can be no dispute that Jespersen created an issue of material fact as to whether the burdens *1086are unequal. “A rule which applies only to women, with no counterpart applicable to men, may not be the basis for depriving a female employee who is otherwise qualified of her right to continued employment.” Gerdom, 692 F.2d at 606 (quoting Allen v. Lovejoy, 553 F.2d 522, 524 (6th Cir.1977)).

Furthermore, the majority neglects burdens other than time and money that are imposed by the policy. The sex-stereotyping inherent in certain appearance standards is a burden that falls more heavily on one sex than the other. Thus, we have recognized that the unequal burdens test does not permit sex-differentiated appearance standards that denigrate one gender based on sex stereotypes. See Gerdom, 692 F.2d at 606 (quoting Carroll, 604 F.2d at 1032-33) (“In Carroll, which involved a requirement to wear uniforms, the court noted that while there is nothing offensive about uniforms per se, requiring only female employees to wear them is ‘disparate treatment ... demeaning to women ... based on offensive stereotypes prohibited by Title VII.’ ”).

Jespersen testified very compellingly to the burdens she personally felt in complying with the makeup policy, explaining that it required her to conform with a feminine stereotype that she felt had nothing to do with making drinks. Given her stellar customer and supervisor evaluations, Jesper-sen is obviously not alone in this analysis. Sex-differentiated appearance standards stemming from stereotypes that women are unfit for work, fulfill a different role in the workplace, or are incapable of exercising professional judgment systematically impose a burden on women, converting such stereotypes into a stubborn reality. See Nevada Dep’t of Hum. Res. v. Hibbs, 538 U.S. 721, 736, 123 S.Ct. 1972, 155 L.Ed.2d 953 (2003) (noting that “mutually reinforcing stereotypes create[ ] a self-fulfilling cycle of discrimination”); see also Carroll, 604 F.2d at 1032-33, cited in Gerdom, 692 F.2d at 606.

This is not to say that all gender-differentiated appearance requirements are prohibited; what violates Title VII are those that rest upon a message of gender subordination. The distinction is apparent in the history of our caselaw on grooming and appearance standards under Title VII. When early challenges to requirements that men keep their hair short arose in the federal courts, those requirements stemmed not from gender subordination, but from fear of a youth counterculture. See Willingham v. Macon Tel. Pub’g Co., 507 F.2d 1084, 1087, 1092 (5th Cir.1975) (quoting Dodge v. Giant Food, Inc., 488 F.2d 1333, 1337 (D.C.Cir.1973)) (“Neither sex is elevated by these regulations to an appreciably higher occupational level than the other.”). Similarly, we have held that requiring men to wear neckties is permissible under Title VII, Fountain v. Safeway Stores Inc., 555 F.2d 753, 755 (9th Cir.1977). However, we have held that requiring women to wear contacts while men may wear glasses, Frank, 216 F.3d at 855, maintain a lower relative weight than men, id., or wear uniforms while men wear appropriate business attire, id. (citing Carroll, 604 F.2d at 1032), is impermissible under Title VII.

Finally, even if all appearance requirements for men are compared to all appearance requirements for women, and even if the burdens engendered by sex-stereotyping are neglected, a reasonable jury could easily conclude that having to wear approximately as much makeup as one was wearing post-makeover, in addition to teasing, curling, or styling one’s hair every day, constitutes more of a burden than having to keep one’s hair short and cut one’s fingernails. All of these activities are ones with which factfinders have everyday familiarity, and “summary judg*1087ment will not lie ... if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

IV

A reasonable factfinder could conclude that the Harrah’s makeup requirement imposes an unequal burden on women, that Jespersen was fired for failure to conform to a sex stereotype, or both. Darlene Jespersen should be allowed to present her case to a jury.

Therefore, I respectfully dissent.