LEGAL DEVELOPMENTS

A requirement applicable only to female bartenders at a Reno casino was upheld by an appellate court as non-discriminatory, since the plaintiff did not prove she was subject to a greater burden than men.  The female bartender at Harrah's casino was an outstanding employee who received praise from customers and supervisors, but had refused to wear makeup because she felt it impinged on her personal dignity and perceived as a sex object.  Harrah's imposed a grooming standard on its employees that prohibited makeup for men, and required it of women.  In addition, women were required to wear stockings and nail polish with their hair in certain styles, whereas men were required to wear their hair short and were prohibited from wearing nail polish.  The plaintiff refused to wear makeup, and declined to apply for another job that did not require her to wear it.  Harrah's discharged her for her failure to comply with its grooming policy.

The Court of Appeals for the Ninth Circuit, in a 2-1 decision, upheld the discharge, saying that the bartender had not proved that Harrah's policy placed a greater burden on her as a female than it did on male employees.  An employer may impose different standards of grooming and dress on employees of different gender, but may not impose a greater burden on one gender than another, such as had occurred in cases in which airline employers imposed weight restrictions on female employees that were more stringent than the restrictions they placed on males.  In this case, however, the bartender had simply not shown that she was subject to a greater burden because of the grooming policy than males were, and hence her discharge was not invalid under Title VII.

In dissent, one appellate judge contended that the bartender had indeed proven enough to satisfy a jury, either on the theory that a makeup requirement subjected her to improper sex stereotyping, or had imposed a time-consuming and expensive makeup regimen that males to which males did not have to adhere.

PLEASE NOTE THE NINTH CIRCUIT HAS AGREED TO REHEAR THIS CASE EN BANC AND HAS WITHDRAWN THIS DECISION.  UPDATE WILL FOLLOW.

Jespersen v. Harrah's Operating Co., 2004 DJDAR 15328 (9th Cir. December 28, 2004).

An employee who was fired for refusing to remove or cover his Confederate flag symbols at work had no claim under Title VII, the Court of Appeals for the Third Circuit in Philadelphia ruled.  The employee, a security guard for Burns International Security, placed a Confederate flag sticker on his lunch box, and two Confederate flag bumper stickers on his pickup truck.  The bumper stickers included the slogans "The South Was Right" and "Heritage Not Hate."  Despite employer attempts to convince the employee to remove or cover the displays, he refused to do so, and since the employer had a "zero tolerance policy" against displays of Confederate symbols, it fired him.

The employee contended that as a "Confederate Southern-American," he was fired because of his national origin and religion.  The Court, sidestepping the issue of the genuineness of his self-identification argument, determined that he did not qualify for Title VII relief because he was not actually discharged as a result of a refusal to accommodate his beliefs.  Since he admitted that nothing in his "religion" required him to display the Confederate symbols, the employer had in any event not impinged on his asserted religion in asking him to remove them.  Since the employer fired the employee not because of the legitimate demands of any "religion," but for his refusal to remove the symbols, the Court rejected his discrimination. 

Storey v. Burns International Security Services, 390 F.3d 760 (3rd Cir. 2004)