She was consistently given glowing recommendations by numerous customers and supervisors, despite the fact that she did not wear makeup. The other requirements are equally restrictive to both males and females. There is no evidence in this record to indicate that the policy was adopted to make women bartenders conform to a commonly-accepted stereotypical image of what women should wear. Pizer, Lambda Legal Defense and Education Fund, Inc. Gaming Supervisors: These floor employees, also referred to as pit bosses, supervise gaming tables and casino staff in an assigned area of the floor. 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 are unequal.
In Frank and Gerdom, we were called upon only to compare the relative burdens of different weight limitations imposed on male and female employees. In contrast, this case involves an appearance policy that applied to both male and female bartenders, and was aimed at creating a professional and very similar look for all of them. The Ninth Circuit recently applied Price Waterhouse to determine that sexual stereotyping by male co-employees was evidence of abuse for purposes of same-sex sexual harassment. Unfortunately, even if this were a valid argument, Plaintiff presents no evidence to support it. My colleagues dismiss this evidence, apparently on the ground that wearing makeup does not, as a matter of law, constitute a substantial burden. Furthermore, the majority neglects burdens other than time and money that are imposed by the policy. Jespersen has articulated a classic case of Price Waterhouse discrimination and has tendered sufficient undisputed, material facts to avoid summary judgment.
Upon learning of the adverse appellate decision, Jespersen and her attorneys promised to appeal. We are mindful that the true gravamen of Plaintiff's complaint appears to be that it is discriminatory to force a woman to wear makeup because she feels it is exploitive and perpetuates women's roles as sex objects. See Judge Pregerson Dissent at 4139. It pointed to the lack of any affidavit in this record to support a claim that the burdens of the policy fell unequally on men and women. The requirements must be viewed in the context of the overall policy. In deciding whether to grant summary judgment, a court must take three necessary steps: 1 it must determine whether a fact is material; 2 it must determine whether there exists a genuine issue for the trier of fact, as determined by the documents submitted to the court; and 3 it must consider that evidence in light of the appropriate standard of proof. 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.
It requires all of the bartenders to wear exactly the same uniforms while interacting with the public in the context of the entertainment industry. They also specialize in customer service on the floor, hearing and resolving patron complaints, explaining house rules, and possibly planning and organizing activities on the floor. If a grooming standard imposed on either sex amounts to impermissible stereotyping, something this record does not establish, a plaintiff of either sex may challenge that requirement under Price Waterhouse. In fact, Jespersen easily satisfied her burden. Nor do I think it appropriate for a court to dismiss a woman's testimony that she finds wearing makeup degrading and intrusive, as Jespersen clearly does. Jespersen tried to wear makeup to work a few times but decided that she did not like it due to the fact it made her feel sick, degraded, exposed and violated.
It is not disputed that she found the makeup requirement offensive, and felt so uncomfortable wearing makeup that she found it interfered with her ability to perform as a bartender. After a few weeks, Jespersen stopped wearing makeup because she disliked the way it made her feel, including a feeling that she was being forced to be feminine. Accordingly, the panel did not agree with the district court that grooming policies could never discriminate as a matter of law. Jespersen disagreed with the district court's ruling, and appealed the decision to the Ninth Circuit Court of Appeal. Threat from substitutes - High 4. Pervasive discrimination often persists within an industry with exceptional tenacity, and the force of law is sometimes required to overcome it.
Moreover, as discussed, we do not find Defendant's policy discriminatory. Hicks and Veronica Arechederra Hall, Littler Mendelson, P. If you are used to wearing makeup—as most American women are—this may seem like no big deal. Therefore, it is reasonable to speculate that prospects for earnings in the future are great. In addition to the makeup provision, the policy forbids men from having the length of their hair fall below the tops of their shirt collars. I agree with Judge Pregerson and join his dissent—subject to one caveat: I believe that Jespersen also presented a triable issue of fact on the question of disparate burden.
The case was decided by a slim 2-1 vote among a three-member panel of judges. Every requirement that forces men to spend time or money on their appearance has a corresponding requirement that is as, or more, burdensome for women: short hair v. In opposition to Harrah's motion, Jespersen relied solely on her deposition testimony regarding her own subjective reaction to the makeup policy, and upon favorable customer feedback and employer evaluation forms regarding her work performance. Upon careful consideration, we agree. § 2000e-2 a 1 , and alleging related state tort claims.
It is not because of anatomical differences, such as a requirement that women wear bathing suits that cover their breasts. Hicks and Veronica Arechederra Hall are Shareholders in Littler Mendelson's Las Vegas office. Evidentiary Objections As a preliminary matter, we address Plaintiff's objections to Defendant's evidence. Nor is there evidence in this record that Harrah's treated Jespersen any differently than it treated any other bartender, male or female, who did not comply with the written grooming standards applicable to all bartenders. Applying Price Waterhouse, our court concluded that this harassment was actionable discrimination because of the plaintiff's sex.
Disputes over irrelevant or unnecessary facts should not be considered. That is a choice her male colleagues were not forced to make. On December 28, 2004, a three judge panel for the Ninth Circuit affirmed the district court's decision granting summary judgment. Harrah's contends that the burden of the makeup requirement must be evaluated with reference to all of the requirements of the policy, including those that burden men only, such as the requirement that men maintain short haircuts and neatly trimmed nails. It pointed to the lack of any affidavit in this record to support a claim that the burdens of the policy fell unequally on men and women. Catrett, , 323, 106 S. As to materiality, only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.