The 9th U.S. Circuit Court of Appeals on Friday upheld Harrah's Reno's right to fire a woman bartender who refused to wear makeup.
A majority of the court held there was "no evidence of a stereotypical motivation on the part of the employer" and therefore no sex discrimination in the decision to terminate Darlene Jespersen.
But four members of the court wrote a strongly worded dissent saying they see the Harrah's policy as clear discrimination and imposition of a "gender-based stereotype."
Jespersen received top ratings during nearly 20 years with Harrah's before the new appearance and grooming requirements were implemented. She lost her job because of the makeup rules, which required women employees to wear cosmetics but prohibited men from doing so.
The majority opinion, written by Judge Mary Schroeder, states that the record contains no evidence the rule was designed to discriminate against women employees.
"This case is essentially a challenge to one small part of what is an overall apparel, appearance and grooming policy that applies largely the same requirements to both men and women."
The dissent by Judge Harry Pregerson, however, said the Harrah's "Personal Best" policy clearly differs in how it treats men and women employees.
"Jespersen's evidence showed that Harrah's fired her because she did not comply with a grooming policy that imposed a facial uniform (full makeup) on only female bartenders," he wrote.
"Quite simply, her termination for failing to comply with a grooming policy that imposed a facial uniform on only female bartenders is discrimination "because of sex," Pregerson wrote. "Such discrimination is clearly and unambiguously impermissible."
But the majority of the seven judges agreed the case record doesn't contain any evidence to establish that the "Personal Best" standards caused unequal burdens on women and men or to suggest Harrah's motivation was to stereotype women bartenders.
Judge Alex Kozinski said it is not appropriate to dismiss a woman's testimony that she finds wearing makeup degrading.
And he concluded by chastising Harrah's for its actions: "Finally, I note with dismay the employer's decision to let go a valued, experienced employee who had gained accolades from her customers over what, in the end, is a trivial matter."
He expressed hope now that the legal battle was over, Harrah's would "do the generous and decent thing" and hire Jespersen back and let her do her job without the makeup.
• Contact reporter Geoff Dornan at email@example.com or 687-8750.