Jespersen v. Harrah's Operating Company Inc. - College of Social ...

POLITICAL SCIENCE 353 MOOT COURT PAPER
Jespersen v. Harrah’s
Operating Company Inc.
The ACLU’s amicus curiae brief in support of the petitioner Darlene Jespersen.
Ashley Callis

IN THE
Supreme Court of the United States
DARLENE JESPERSEN,
-v-
Petitioner,
HARRAH’S OPERATING COMPANY INC.,
Respondent.
ACLU AMICUS CURAE BRIEF IN FAVOR OF DARLENE JESPERSEN,
PETITIONER
Page | 2

TABLE OF AUTHORITIES
Cases
Page | 3
1. Carroll v. Talman Federal Savings and Loan Association of Chicago, 604 F.2d 1028
(1979)
2. Frank v. United Airlines Inc., 216 F.3d 845 (2000)
3. Jespersen v. Harrah’s Operating Company Inc., 280 F. Supp. 2d 1189 (2002)
4. Jespersen v. Harrah’s Operating Company Inc., 444 F.3d 1104 (2006)
5. Nichols v. Azteca Restaurant Enterprises Inc., 256 F.3d 864 (2001)
6. Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)
11. ACLU. ACLU.com
Other Authorities
12. Fisk, Catherine L.“ Privacy, Power, and Humiliation At Work: Re-Examining
Appearance Regulation As An Invasion of Privacy.” (2006) Duke Law School Faculty
Scholarship Series.
13. Kirshenbaum, Andrea Meryl. “Because of…Sex: Rethinking the Protections Afforded
Under Title VII in the Post-Oncale World.” (2006) Albany Law Review, Vol. 69
No.139.
14. Levi, Jennifer L., “ Clothes Don’t Make the Man (or Woman), but Gender Identity
Might.” (2006) Faculty Scholarship Faculty Publications. Western New England
College School of Law.
15. Lindgren, Ralph J. et al. “The Law of Sex Discrimination.” Fourth Edition. Pp 77-109

16. Pizer, Jennifer C. “Facial Discrimination: Darlene Jespersen’s Fight Against the
Page | 4
Barbie-fication of Bartenders.” (2007) Duke Journal of Gender Law & Policy, Vol. 14,
No. 285.
17. “Title VII. Gender Discrimination. Ninth Circuit Holds That Women Can Be Fired for
Refusing to Wear Makeup.” (2006) Harvard Law Review, Vol. 120 No. 2.

INTEREST OF AMICI
Page | 5
The American Civil Liberties Union works “to defend and preserve the individual rights
and liberties that the Constitution and laws of the United States guarantee everyone in this
country” (11). It is the duty of the ACLU to interviene on behalf of those whose Consitutional
rights, and civil liberties are encroached upon, especially when the greivenced party is of a
traditionally discrimiated gourp such as, “people of color; women; lesbians, gay men, bisexuals
and transgender people; prisoners; and people with disabilities” (11). The question in the case of
Jespersen v. Harrah’s Operating Co. Inc. is whether an employment issued, gender specific
“uniform” policy is covered as discrimination and a violation of Title VII of the Civil Liberties
Act. The employment policy at hand requires all female bartenders to wear makeup to work, this
is a perpetuation of a sexual-stereotype that women must wear makeup in order to be viewed as
professional and attractive. The matter at hand may appear to be a trivial concern about facial
makeup, “but the question arises within a historical continuum of dress and decorum demands
that have constrained generations of women” (12).
STATEMENT OF THE CASE
In February 2000 Harrah’s Operating Company began the implementation of an
appearance and grooming policy called the “Personal Best” for all beverage department
employees at Harrah’s casino locations. Half of the policy requirements were gender neutral, for
instance, “a standard uniform of black pants, white shirt, black vest, and black bow tie” (3). The

Page | 6
rest were gender specific requirements: for men, “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. Eye and facial makeup is not permitted,” and for females,
“Hair must be teased, curled, or styled. Hair must be worn down at all times. Make up (face
powder, blush and mascara) must be worn and applied neatly in complimentary colors. Lip color
must be worn at all times” (4). For the makeup requirement, Harrah’s hired a cosmetic artist who
gave consultations to the female employees and a diagram of how to put on their makeup in each
day for work. By May 5 2000, after Plaintiff, who never wears makeup in her day-to-day life,
made an attempt to conform to the new policy, stated that the makeup made her feel “extremely
uncomfortable, ill and violated,” and would discontinue wearing the required cosmetics. In
response the Defendant offered Plaintiff the opportunity to view Harrah’s job offerings that did
not have a makeup requirement; Jespersen refused and was terminated as a result (3). The
Plaintiff filed suit against Defendant with the United States District Court for the District of
Nevada claiming that Harrah’s Operating Co. Inc. discriminated against her in violation of Title
VII; the District Court of Nevada granted a summary judgment for the Defendant. A summary
judgment is a decision in favor of one party in order to spare courts from “unnecessary trials”
when the presiding judges determine that the opposing party does not have enough evidence to
make a case (3). In Jespersen v. Harrah’s Operating Co. Inc., the District Court, decided that the
Plaintiff did not have enough evidence to prove discrimination as defined by Title VII. The
Plaintiff appealed the District Court’s summary judgment to the United States Court of Appeals
for the Ninth Circuit. The Circuit Court stated that the Plaintiff failed to establish a prima facie

Page | 7
case in accordance with the Supreme Court’s order of proof under Title VII, and thus affirmed
the District Court’s summary judgment in favor of Harrah’s. As a means of last resort, Jespersen
filed a writ of certiorari with The United States Supreme Court.
A. TITILE VII
ARGUMENT
Congress created Title VII of the Civil Liberties Act as a means of protection against
discrimination towards members of traditionally ostracized groups in employment, the most
widely used provisions of Title VII are:
(1) It shall be an unlawful employment practice for an employer to fail or
refuse to hire or to discharge any individual, or otherwise to discriminate
against any individual with respect to his compensation, terms conditions,
or privileges of employment, because of such individual’s race, color,
religion, sex, or national origin or
(2) To limit, segregate, or classify his employees or applicants for
employment in any way which would deprive or tend to deprive any
individual of employment opportunities or otherwise adversely affect his
status as an employee, because of such individual’s race, color, religion,
sex, or national origin. (15)

Page | 8
Furthermore, in 1991 Congress decided to amend the Civil Liberties Act to increase the covered
provisions, the amendment stated that, “an unlawful employment practice is established when the
complementary party demonstrates that sex was a motivating factor for any employment
practice, even though other factors may motivate” (13). In the present case, Plaintiff Jespersen
argues disparate treatment from Defendant Harrah’s Operating Co. Inc., stating that the
“Personal Best” policy on appearance and grooming was more burdensome towards women,
amounted to gender stereotyping, and constituted an employment practice that adversely affected
certain employees because of sex in accordance to Title VII provisions (3)(4). As defined by the
Supreme Court there are two forms of Title VII discrimination, disparate treatment, which is an
obvious and intentional discrimination by the employer, and disparate impact, which is an act or
policy created by the employer that does not seem discriminatory, but has a discriminating effect
(15). Jespersen brought suit against Harrah’s as a victim of disparate treatment, and thus
disparate impact shall be omitted from the argument; though, whether an employer’s actions
amount to obvious discrimination or has a discriminatory effect does not matter given that, “in
the implementation of employment decisions, it is abundantly clear that Title VII tolerates no
discrimination, subtle or otherwise” (6).
1. Greater Burden:
The Plaintiff argues that the “Personal Best” policy, implemented by the Defendant,
created a greater burden for women employees than for male employees. The policy in question
required that men maintain a short haircut and clean, trimmed nails, while requiring women to
have their “hair teased, curled, or styled every day, and makeup (face powder, mascara, and
blush)” (3)(4). Though both the hair and make up requirements constitute a situation of greater

Page | 9
burden, Jespersen claims only to have issue with the make up requirement, that it “costs more
money and takes more time for a woman to comply with the makeup requirement” (4) and that
these “added burdens of cost and time had no equivalent counterparts for male employees” (17).
Unequal burdens can take multiple forms, “unequal economic, physical and psychological
burdens, and Harrah’s imposed all three burdens unequally among women” (17). As already
mentioned, the economic cost for female employees at Harrah’s was much greater than for the
male employees, whose only costs “were the price of a monthly haircut and a trivial one-time
investment in fingernail clippers” (17). In a similar case, Carroll v. Talman, female employees
were required to wear uniforms while the men were not; in this case the Appeals Court for the
Seventh Circuit decided in favor of the female employees because only the women had a specific
uniform while the men only had a dress code, furthermore, the female employees were “required
to pay for the cleaning and maintenance of their uniforms. If a part of the uniform becomes lost
or damaged the employee must replace it at her own expense” (1). As in Carroll v. Talman,
Harrah’s female bartenders were the only one’s required to wear a “facial uniform,” while at the
same time, the “Personal Best” policy did not even require male employees to shave, “nor did his
hair need to be washed or neatly combed;” (17). Furthermore, female employees, similar to
Carroll, were responsible for buying makeup, replacing it when it had been used or if lost; and as
the uniforms in Carroll portrayed that women could not look professional on their own,
“Harrah’s policy unavoidably conveys a message that women-and not men-are incapable of
making appropriate decisions about how to prepare their faces in the morning” (16). The
physical burden imposed on women “stood in stark contrast to the standards for men, who had
no time-consuming daily requirements,” (12) and as stated by Judge Kozinski in his dissenting

Page | 10
opinion for Jespersen v. Harrah’s, “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” (4). As for the psychological burden imposed by Harrah’s “Personal
Best” policy, the decision to wear makeup, “literally the face one presents to the world- is an
intensely personal choice” (4); Jespersen felt that being forced into altering her appearance with
cosmetics “would conflict with her self-image” (17) and that “submitting to the artificial ‘dolling
up’ made her feel so exposed, demeaned, and alienated that she could not do her job effectively”
(16). The EEOC guidelines regarding unlawful sex discrimination in accordance with Title VII
defined sexual harassment to include, “such conduct that has the purpose or effect of
unreasonably interfering with an individual’s work performance or creating an intimidating,
hostile or offensive working environment” (13). Yet the Circuit Court decided that Jespersen
lacked the evidence to support her claim of greater burden, they felt that both men and women
were subjected to “grooming” requirements, and stated that, “grooming standards that
appropriately differentiate between the genders are not facially discriminatory” (4).
2. “Because of Sex” Gender Stereotyping:
In the case of Nichols v. Azteca Restaurant Enterprises Inc. the Ninth Circuit stated that,
“sexual harassment is actionable under Title VII to the extent that it occurs ‘because of’ the
Plaintiffs sex” (5). Also in the case of Price Waterhouse v. Hopkins the Supreme Court held that,
“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, Congress intended to strike at the entire
spectrum of disparate treatment of men and women resulting from sex stereotypes’” (6). In the

Page | 11
case at hand the Plaintiff argues that requiring female employees to wear makeup is based on a
stereotypical view of what a woman should look like, and that this policy is in direct opposition
to Title VII restrictions against discriminative employment policies that are created because of
sex. Judge Kozinski’s dissenting opinion for Jespersen v. Harrah’s Operating Co. Inc. states that
the Plaintiffs’, “termination for failing to comply with a grooming policy that imposed a facial
uniform on only female bartenders is discrimination ‘because of’ sex. Such discrimination is
clearly and unambiguously impermissible under Title VII, which requires that ‘gender must be
irrelevant to employment decisions’” (4). Often times an employer will defend a discriminatory
policy by explaining that gender was not the only factor or motive in creating the policy, this is
known as mixed motive situation. Turning back to the case of Price Waterhouse v. Hopkins the
majority opinion stated that if gender is even a partial factor to any policies or decisions made by
an employer it is covered by Title VII restrictions, unless the employer can prove that the same
actions would have been taken no matter the gender. In regard to the Defendant’s “Personal
Best” policy, it can hardly be said that the policy forcing female employees to wear makeup
would have been created no matter the gender, given that the aspect of the policy at issue applies
only to women. The stated purpose for the policy is a means of ensuring good grooming habits
among the employees, however requiring females to curl, tease, or style their hair, and wear
powder, mascara, blush, and lipstick to work each day is by no means a matter of grooming and
achieving a look of professionalism. Justice Kozinski states that, “The inescapable message is
that women’s undoctored faces compare unfavorable to men’s, not because of a physical
difference between men’s and women’s faces, but because of a cultural assumption- and gender

Page | 12
based stereotype- that women’s faces are incomplete, unattractive, or unprofessional without full
makeup” (4).
B. BONA FIDE OCCUPATION QUALIFICAITON
The only recourse for an employer being accused of discriminatory actions is to (as stated
above) prove that the action would have been carried out no matter the gender, or by displaying
that the discrimination qualifies as a bona fide occupation qualification (BFOQ). When proving a
BFOQ the Defendant must show that the “challenged policy or practice is a business necessity,
rather than merely a ‘business convenience’” (15). As stated in the case of Frank v. United
Airlines Inc. and in relation to Harrah’s “Personal Best” policy, “a sex-differentiated appearance
standard that imposes unequal burdens on men and women is disparate treatment that must be
justified as a BFOQ” (2). Shortly after creation of the BFOQ, the Equal Employment
Opportunity Commission (EEOC) became concerned that it would be interpreted too broadly,
and effectually weaken the provisions of Title VII.
1. EEOC:
To limit the used of BFOQ the EEOC urged courts to interpret BFOQ narrowly, and gave
a list of instances that do not warrant the application of bona fide occupational qualifications:
(1) Refusal to hire a woman based on assumptions of the characteristics in general, (2) Refusal
to hire based on stereotyped characteristics of either sex, the principle of nondiscrimination
requires that individuals be considered on the basis of individual capacities, (3) Refusal to

Page | 13
hire an individual because of the preference of coworkers, the employer, clients or customers
(15).
2. CUSTOMER PREFERENCES AREN’T PROTECTED UNDER BFOQ:
In the Defendant’s testimony giving a non-discriminatory purpose for the “Personal Best”
policy they stated, “that makeup completes the uniformed look for female employees, and that
women’s faces benefit from makeup due to the purported rigors of casino lighting” (16). This
does not qualify as a bona fide occupation qualification, whether a female bartender looks
attractive or not has no affect on their job performance. However, it does fall under the category
of customer preference, given that most male bar-goers would rather an “attractive” female wait
on them. As stated in Carroll v. Talman, “possible customer preference is not a defense to an
employment policy which makes a distinction upon grounds not permitted by Title VII” (1).
CONCLUSION
The American Civil Liberties Union recommends to the Supreme Court that based on the
above-mentioned precedents, court opinions, and law, the decision in the case of Jespersen v.
Harrah’s Operating Co. Inc. should be in favor of the Plaintiff. As the inequalities between men
and women continue to permeate the American culture (12), it is seemingly small-scale decisions
such as these that eventually make for changes in people’s prejudice and create an environment
for more opportunities for traditionally discriminated groups.

Page | 14

Page | 15