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Last week a Reno bartender filed for a 9th Circuit Court hearing, claiming that Harrahs' rules requiring her to wear make-up caused her to be fired from a 20-year career with the company. KNPR's Ky Plaskon reports
PLASKON: The Civil Rights Act of 1964 prohibits employers from denying jobs based on race, religion, national origin, or sex. Ever since it's been used in court to allow men to work as nurses, to stop airlines from requiring stewardesses to be skinny, and when the investment firm Price Waterhouse denied a promotion to a banker because her appearance wasn't effeminate enough, in 1982 the Supreme Court ruled that was a violation the Act. But for the past 5 years it has failed in the defense of a former Harrahs bartender. Jenny Pizer is her attorney.
PIZER: People are expressing alarm as a roll back to a generation ago as a way for employers to impose unclear rules on women and just on women with a message that they are supposed to behave like women and act like women as in stay in your place, stay in your place behave and look this way or you will lose your job.
PLASKON: Pizer, an attorney with Lambda Legal Defense, a nation-wide gay civil rights organization, is defending former Harrahs Bartender Darlene Jesperson. After 20 years working for Harrahs, Jesperson was fired in August 2000 when the company instituted what it called a "Personal Best" policy. Harrahs spokesman Gary Thompson knows the policy.
THOMPSON: Some of the requirements for hair styles and make up were eased.
PLASKON:The requirements may have been less strict, but they were more strictly enforced. For the first time Harrahs required Jesperson to wear make-up. Thompson explains the strong enforcement was necessary because employees and customers wanted it at recently acquired properties.
THOMPSON: There were not uniform standards across properties and our customers where were accustomed to certain standards of cleanliness and were complaining about what they were witnessing there."
PLASKON: But Jesperson's bar wasn't one of those newly acquired properties.
THOMPSON: In fact we have owned that property for over 40 years.
PLASKON: The "personal best" policy, which is still in place at Harrahs, says that women must wear blush, foundation and lipstick "at all times", and that men shouldn't wear make up at all. Harrahs came up with the policy using an airline consultant and according to Thompson, Harrahs implemented the policy because case law supports it.
THOMPSON: If you are a news anchor on TV even the men wear make up and so there are certain jobs where women are required to wear make up.
PLASKON: But that's the problem for Jesperson. At Harrahs only women are required to wear make-up, not men. Thompson says Harrahs offered Jesperson her job back and even told her she didn't have to wear make-up.
THOMPSON: We did offer an exception. And to a lot of people who are passionate about it they loose that passion. When you go to work you are expected to have certain clothing standards.
PLASKON: Pizer says it didn't matter if she could get her job back, Jesperson who is now working three retail jobs decided to take a stand against Harrahs' new policy.
PIZER: And for many years they had been pushing women to wear make up and she knew full well that there were plenty of women who hated theat policy, there weren't any that were willing to stand up and loose their jobs. And she was really worried that if she came back accepted reinstatement with exemption from the policy she would be isolated. They had to work together as a team. It is very difficult for an employee if they are getting preferred treatment if the other workers see that they are getting special treatment so it didn't seem that that was going to be workable.
PLASKON: Ever since Jesperson is at the center of what Pizer considers an emerging area of Civil Rights Act law. In the past the Act was used to successfully argue that employer can require stereotypical uniforms as long as they are applied equally.
SOUND: Hard Rock Hotel
PLASKON: Here at the Hard Rock Hotel, cocktail waitresses wear fishnets, tight shorts and tops. Under the common application of the civil rights act, Pizer says if men were given cocktail server jobs they would be required to wear similar outfits as women.
PIZER: If you applied that rule you might say that the guys need to go bare chested and wear skimpy shorts or look like Chippendales and costume if the women are going to wear fishnets and tight blouses, and under the old rule that wouldn't be sex discrimination because each group of people are being burdened they are all unhappy, they are all being burdened in an unequal way.
PLASKON: In December a panel of the Ninth Circuit ruled 2-to-1 that Jesperson didn't prove the make-up requirement burdened women more than men. With the hope of getting the case re-heard by the full Ninth Circuit, Pizer is now arguing that Harrahs' rules violate the Civil Rights Act because they force conformity to stereotypes even if those stereotypes are applied equally.
PIZER: So in fact both groups are being discriminated against instead of neither.
PLASKON: She says that if the court doesn't rehear the case it will invite employers to implement extreme rules to entice and titillate customers. Harrahs says it should be able to enforce the same rules as strip clubs and heavy metal bars. The full Ninth Circuit is expected to announce if it will hear the case within the next two months and if denied, Lambda Legal Defense has said it may appeal to the Supreme Court.
Ky Plaskon, News 88-9, KNPR