Facial Discrimination: Darlene Jespersen's Fight against the Barbie-Fication of Bartenders
![handle is hein.journals/djglp14 and id is 289 raw text is: FACIAL DISCRIMINATION: DARLENE JESPERSEN'S FIGHT AGAINST
THE BARBIE-FICATION OF BARTENDERS
JENNIFER C. PIZER*
I. INTRODUCTION
Darlene Jespersen's struggle against Harrah's Operating Co. is a Davida
and Goliath story: Jespersen, a determined career bartender, stood up to a
mega-corporation's mandate that its female employees conform to a uniform
look-a look that standardized women's faces to an extreme extent, even for
the contrived-glamour world of Nevada gaming. Harrah's so-called Personal
Best policy facially discriminated based on sex: The policy explicitly required
female bartenders to uniform their faces, while permitting male bartenders to
retain their autonomy about this most personal of attributes. By requiring
female employees to alter their faces daily to conform to a stylized, company-
approved feminine look, Harrah's policy deprived women like Darlene
Jespersen of basic dignity, and imposed on them added burdens of cost and time
that had no equivalent counterparts for male employees.
Jespersen wore the Harrah's uniform with pride for more than twenty
years. A respectful, loyal employee, she tried in good faith to wear facial
makeup as Harrah's directed. But for this nearly six-foot tall, broad-shouldered
woman with a down-to-earth persona, having to be dolled up1 and present an
artifice of femininity was a humiliating, alienating exercise, and it interfered
with her ability to interact effectively with customers, especially unruly ones.
Jespersen believed she was entitled to enough respect as a hard-working,
dignified employee that she should not have to submit to a demeaning, gender-
based contrivance when her male coworkers faced no analogous requirement.
Given that the only reason she was instructed to endure a daily makeover was
because of [her] sex,2 shouldn't Title VII speak up on her behalf?
This author had the privilege of representing Darlene Jespersen in her
appeal to the U.S. Court of Appeals for the Ninth Circuit after the U.S. District
Court for the District of Nevada entered summary judgment against her.3 In the
Ninth Circuit, a divided three-judge panel affirmed the summary judgment
. Senior Counsel, Lambda Legal Defense and Education Fund, Inc.; J.D., New York University
School of Law; B.A., Harvard and Radcliffe Colleges.
1. Corrected Opening Brief of Plaintiff-Appellant at 25, Jespersen v. Harrah's Operating Co.,
392 F.3d 1076 (9th Cir. 2004) (No. 03-15045), 2003 WL 22716697.
2. 42 U.S.C. § 2000e(a)(1) (2000). See Price Waterhouse v. Hopkins, 490 U.S. 228, 241-42 (1989)
(plurality opinion) (discussing what it means for disparate treatment to be because of sex).
3. Jespersen v. Harrah's Operating Co., Inc., 280 F. Supp. 2d 1189 (D. Nev. 2002), affid, 392 F.3d
1076 (9th Cir. 2004), vacated, 409 F.3d 1061 (9th Cir. 2005), affd en banc, 444 F.3d 1104 (9th Cir. 2006).](ViewImageLocal?handle=hein.journals/djglp14&div=14&collection=&method=preview&ext=.png&size=3)
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Facial Discrimination: Darlene Jespersen's Fight against the Barbie-Fication of Bartenders
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