Jespersen v. Harrah's Operating Company, Inc
In Jespersen v. Harrah's Operating Company, Inc. (2006) 444 F.3d 1104, plaintiff challenged her employer's personal grooming policy, claiming that the requirement that she wear makeup constituted unlawful sex discrimination, both because it resulted in disparate treatment based on gender and because it had a disparate impact on her.
Holding that plaintiff had failed to establish a record that would support a finding that the grooming policy was motivated by sex stereotyping, the Ninth Circuit affirmed the summary judgment entered by the trial court. While the court did not preclude the possibility that a grooming code, if not reasonably applied, could unlawfully discriminate, it would not permit the subjective objection of a single employee, without evidence of improper motivation by the employer, to be the basis for a claim. (Jespersen, supra, at p. 1113.)
With respect to the claim for unequal burdens, the court recognized that demonstrating the existence of a sex-based difference in employer grooming policies, without more, does not establish a prima facie case of discrimination. (Jespersen, supra, 444 F.3d at p. 1109.)
A difference in grooming standards between men and women in a policy that otherwise applies equally to all employees in a given job category does not violate Title VII unless the policy places a greater burden on one gender. (Id. at pp. 1109-1110.)
Because, on summary judgment, plaintiff had submitted no evidence demonstrating that there was a relative difference in cost or time for men and women to comply with the policy, she could not prevail. (Id. at p. 1111.) Similarly, with respect to sex stereotyping, there was no evidence that the policy was based on a stereotypical view of women, or that the standards would negatively impact a woman's ability to perform the job. (Id. at p. 1112.)
Rather, more must be shown than the objection of a single employee:
"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 requirement, without more, can give raise 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." (Ibid.)