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Court Backs Firing of Waitress Without Makeup
Reuters ^ | 12/29/04

Posted on 12/29/2004 8:39:47 AM PST by freespirited

SAN FRANCISCO (Reuters) - A female bartender who refused to wear makeup at a Reno, Nevada, casino was not unfairly dismissed from her job, a U.S. federal appeals court ruled on Tuesday.

Darlene Jespersen, who had worked for nearly 20 years at a Harrah's Entertainment Inc casino bar in Reno, Nevada, objected to the company's revised policy that required female bartenders, but not men, to wear makeup.

A previously much-praised employee, Jespersen was fired in 2000 after the firm instituted a "Beverage Department Image Transformation" program and she sued, alleging sex discrimination.

In a 2-1 decision, a three-judge panel of the U.S. 9th Circuit Court of Appeals upheld a lower court ruling in favor of Harrah's. All three judges are males appointed by Democratic presidents.

"We have previously held that grooming and appearance standards that apply differently to women and men do not constitute discrimination on the basis of sex," Judge Wallace Tashima wrote for the majority.

He cited the precedent of a 1974 case in which the court ruled that a company can require men to have short hair but allow long hair on women.

The Lambda Legal Defense Fund, a gay rights group that backed Jespersen's suit, had argued that forcing female employees to have different standards than men was unlawful under rules, known as Title VII, against discrimination on race, color, religion, sex or national origin.

The ruling found, however, that the casino's appearance standards were no more burdensome for women than for men.

In a dissenting opinion, Judge Sidney Thomas backed the reasoning of the plaintiff. "Harrah's fired Jespersen because of her failure to confirm to sex stereotypes, which is discrimination based on sex and is therefore impermissible under Title VII," he wrote.

"The distinction created by the majority opinion leaves men and women in services 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," he wrote.


TOPICS: Culture/Society; Government; News/Current Events
KEYWORDS: 9thcircuit; dieseldyke; harrahs; largemarge; makeup; notamilf; sexdiscrimation; sexdiscrimination; waitress; workplace; yikes
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To: Jay777
I gotta go out on a limb here...In my opinion...if the girl didn't want to wear make-up she shouldn't have to. They shouldn't be able to fire someone based on that. They should only be able to fire her if she didn't do her job well.

I'm a believer in the principle that an employer should be able to fire somebody for whatever they want, just like an employee can quit for any reason, or no explained reason

In this case, an attractive bartender will make more money for the place than an unattractive bartender

151 posted on 12/29/2004 5:49:03 PM PST by SauronOfMordor (We are going to fight until hell freezes over and then we are going to fight on the ice)
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To: af_vet_1981

I saw the picture before...what's your point?? If you're drinkin' there just squint and pretend she's an ugly guy...sheesh...like you date supermodels!!!


152 posted on 12/29/2004 5:49:35 PM PST by paulat
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To: freespirited

It should be legal for an employer to set whatever criteria they see fit... but that does not make it right. Harrah's sucks.


153 posted on 12/29/2004 5:53:19 PM PST by Sloth (Al Franken is a racist.)
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To: MineralMan
"If I was a cocktail waitress I'd want to look my best. More TIPS!!!"

As a bar owner, I can assure you that the same principal works for bartenders.

154 posted on 12/29/2004 6:00:21 PM PST by wireman
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To: paulat
I saw the picture before...what's your point?? If you're drinkin' there just squint and pretend she's an ugly guy...sheesh...like you date supermodels!!!

Only the best

You did of course check the image and see who was sponsoring it ...

I knew someone clever enough to ask my point would be smart enough to investigate that on their own ...

155 posted on 12/29/2004 6:02:01 PM PST by af_vet_1981
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To: paulat

She should have groomed herself according to the new policies. She had a different agenda. I'm glad she, and the lawyers she rode in on, lost will receive nothing from Harrah's. I hope her court costs are significant.


156 posted on 12/29/2004 6:05:00 PM PST by af_vet_1981
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To: MineralMan
"Not this man. I tip based on service, not the appearance of the server."

Take my word for it MM, you are in a huge minority. Unfortunately I see it every day.

157 posted on 12/29/2004 6:05:38 PM PST by wireman
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To: af_vet_1981
You did of course check the image and see who was sponsoring it ...

Of course I did...it looked too much to me like a parody pic. You couldn't FIND a better stereotype. So...she gave 21 YEARS.

I could understand if it was a new Hooters location and set the regs...this is different.

158 posted on 12/29/2004 6:10:50 PM PST by paulat
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To: paulat
So...she gave 21 YEARS.

Yes, yes, yes, and John F. Kerry gave more than 21 YEARS ...

159 posted on 12/29/2004 6:16:04 PM PST by af_vet_1981
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To: wireman
Take my word for it MM, you are in a huge minority. Unfortunately I see it every day.

The solution is elementary.

Don't tip.

160 posted on 12/29/2004 6:17:00 PM PST by af_vet_1981
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To: wireman
the same principal


161 posted on 12/29/2004 6:19:51 PM PST by Revolting cat! ("In the end, nothing explains anything!")
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To: af_vet_1981
Yes, yes, yes, and John F. Kerry gave more than 21 YEARS ...

...what on earth are you talking about?

162 posted on 12/29/2004 6:57:48 PM PST by paulat
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To: MineralMan
I'm very, very glad I didn't see that pic until now; if I'd seen it when you posted it I would not have been able to have the leisurely breakfast that wifey and I had.

BTW, how's the first winter in Uffdaville going? ... Understand you had a bit of a cool spell last week.

163 posted on 12/29/2004 7:01:50 PM PST by ErnBatavia (ErnBatavia, Coulter, Malkin, Ingraham....the ultimate Menage a Quatro)
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To: MineralMan

Skip the make-up, get her a Bart Simpson mask!


164 posted on 12/29/2004 7:03:19 PM PST by Blue Collar Christian (Maybe godless liberalism doesn't belong in science class. ><BCC>)
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To: af_vet_1981
You misunderstand me, af_vet_1981.

I own a bar. My customers (mostly hardworking, blue collar guys who like to have a few pops after work each day) would rather drink poorly made drinks and wait to get them as long as a young lady who looks like a stripper brings them.

My staff has been with me for a long time (mostly moms in their late 30's - 40's) and they are competent, professional, and attractive. I still lose tons of business to places that hire 20 year olds.

What are you going to do...

165 posted on 12/29/2004 7:25:31 PM PST by wireman
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To: Voice in your head

No one forced anyone to hire her. But to fire her for refusing to wear make up is crazy. She had been working there for 20 years. I'm sure they tried to fire her before going to court about it.


166 posted on 12/29/2004 7:40:11 PM PST by Jay777
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To: calex59

So women should not be able to have short hair? I definitely think that women should not be allowed to have beards! Women with mustaches should be fired if they don't wax it! All waitresses should have to line up in military file before each shift and have a full inspection. This ruling was crazy!


167 posted on 12/29/2004 7:43:15 PM PST by Jay777
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To: SauronOfMordor

Then Hooters should be able to hire on the basis of the size of a woman's breasts?


168 posted on 12/29/2004 7:45:09 PM PST by Jay777
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To: Jay777
Then Hooters should be able to hire on the basis of the size of a woman's breasts?

Works for me. Sort of goes with the concept of "Hooters", doesn't it?

169 posted on 12/29/2004 7:51:29 PM PST by SauronOfMordor (We are going to fight until hell freezes over and then we are going to fight on the ice)
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To: SauronOfMordor

I see your point and acknowledge it. I, however, believe that hiring and firing should be judged on such things as work ethic, honesty, reliability, precision, devotion, and enthusiasm...not on sex, race, age, or physical appearance. I understand some physical requirements...but if you entered into a contract that did not mention these requirements, you shouldn't be forced out later for them. There should be some kind of tenure or protection after a certain amount of time. This woman had worked there for 20 years! There should be protections from ruthlessness in business, otherwise you could set up retirement for people at 20 years, then make up some crazy reason to fire them at 19! It happens out there.


170 posted on 12/29/2004 7:59:47 PM PST by Jay777
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To: pissant

I am a woman (as you can see by my name), and I have a part-time job which requires me to wear a button-down shirt. I have never, ever worn button-down shirts before having this job, because I don't enjoy dressing like a man. I don't think the company should force me to dress like a man, but that is what they are doing. Even at a local grocery store, the men and women wear the same shirts, and they are men's shirts (i.e., the buttons are on the men's side of the shirt), and I think it is really cruel. If companies want everyone to dress the same, have all employees wear SKIRTS. MEN must have come up with these STUPID ideas, because women sure wouldn't. Oh, and by the way, personally, I LOVE wearing makeup.


171 posted on 12/29/2004 8:02:26 PM PST by GOP_Lady
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To: The Ghost of FReepers Past

Male = XY
Female = XX

Females can be X0 (missing an X).
Men born without one the chromomes do not even get born.

Lesson: Men are men; women are women.


172 posted on 12/29/2004 8:18:07 PM PST by GOP_Lady
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To: pissant
HA HA HA, nice bird's nest :)
173 posted on 12/29/2004 8:19:45 PM PST by Quinotto (On matters of style,swim with the current,on matters of principle stand like a rock-Thomas Jefferson)
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To: Freebird Forever
I agree up to a point, these were requirements established long after the woman was hired, she's been with the company for decades, she actually looks like a nice, motherly type and I don't think any amount of makeup will change that. The employer should have used some common sense, taking into consideration her age, her length of employment, her work performance. What on earth happened to common sense?
174 posted on 12/29/2004 8:23:06 PM PST by Quinotto (On matters of style,swim with the current,on matters of principle stand like a rock-Thomas Jefferson)
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To: Quinotto

Yes, that is what it comes down to. The company should be CONSIDERATE about dress codes.


175 posted on 12/29/2004 8:28:56 PM PST by GOP_Lady
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To: Jay777
"No one forced anyone to hire her."

Likewise, they should not be forbidden from firing her. A job is not an entitlement.

"But to fire her for refusing to wear make up is crazy. She had been working there for 20 years."

If that is all that there is to it, then I would agree. What is even crazier is the notion that a court has any say in whether a business can choose who it will employ and who it won't. If I am ever a business owner and the government tells me who to hire or fire, I hope that I will be in a sufficiently good financial position to just say "screw it" and close shop.

176 posted on 12/29/2004 10:43:05 PM PST by Voice in your head ("The secret of Happiness is Freedom, and the secret of Freedom, Courage." - Thucydides)
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To: wireman
You misunderstand me, af_vet_1981. I own a bar. My customers (mostly hardworking, blue collar guys who like to have a few pops after work each day) would rather drink poorly made drinks and wait to get them as long as a young lady who looks like a stripper brings them. My staff has been with me for a long time (mostly moms in their late 30's - 40's) and they are competent, professional, and attractive. I still lose tons of business to places that hire 20 year olds. What are you going to do...

Hey look, mister, we serve hard drinks in here for men who want to get drunk fast and we don't need any characters around to give the joint atmosphere. Is that clear, or do I have to slip you my lip for a convincer?

177 posted on 12/30/2004 5:42:01 AM PST by af_vet_1981
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To: paulat
...what on earth are you talking about?

Why the same thing you are talking about ...

how this woman and John F Kerry are entitled to their jobs because they have been working hard for more than 20 years ...

178 posted on 12/30/2004 5:43:14 AM PST by af_vet_1981
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To: Voice in your head
If I am ever a business owner and the government tells me who to hire or fire, I hope that I will be in a sufficiently good financial position to just close shop.

Ah the problem Dr. Watson is that they adjust your sufficiently good financial position to take your money and give it to others.

It's the Democratic Way ...

179 posted on 12/30/2004 5:44:47 AM PST by af_vet_1981
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To: Jay777
I understand some physical requirements...but if you entered into a contract that did not mention these requirements, you shouldn't be forced out later for them. There should be some kind of tenure or protection after a certain amount of time.

Being an employee of a company at the moment, I see your point. Having been a business owner in the past, with people working for me, I also see the company's viewpoint, and I get the strong feeling that we don't have all the data here

Companies generally don't lightly fire people, if only because of the effect on morale of the remaining employees. Also, the process of evaluating replacements is costly, so firing somebody who is actually doing her job well is bad for business. The official reason for firing seems unfair, but it may have been the only reason they could come up with that was legally quantifiable, in order to do what they may have wanted to do for a while.

Where I currently work, they recently fired a guy for violating a company policy against coming to work while intoxicated. They wanted to fire him for a while, because he was incompetent. But proving the incompetence of somebody in a highly technical field to a jury of laymen is really hard to do. So they waited until they could nail him, with witnesses, on something else.

I see your point on firing people to screw them out of contracted benefits like pension, but there is no allegation in the story that this was a reason. If it was the reason, and the company displayed a pattern of trying to weasel out of contracted benefit obligations, then I would support nailing management to the wall

180 posted on 12/30/2004 5:50:12 AM PST by SauronOfMordor (We are going to fight until hell freezes over and then we are going to fight on the ice)
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To: af_vet_1981
...what on earth are you talking about?

Why the same thing you are talking about ...

how this woman and John F Kerry are entitled to their jobs because they have been working hard for more than 20 years ...

John Kerry hasn't worked a day in his life. ANY bartender has. You are getting more and more tiresome. You are boring me...pls don't respond.

181 posted on 12/30/2004 6:48:58 PM PST by paulat
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