The only evidence in the record to support the stereotyping claim is Jespersen’s own subjective reaction to the makeup requirement. The majority contends that it is bound to reject Jespersen’s sex stereotyping claim because she presented too little evidence-only her “own subjective reaction to the makeup requirement.” Maj. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989) (plurality opinion), prohibiting discrimination on the basis of sex stereotyping, did not apply to this case because in the district court’s view, the Ninth Circuit had excluded grooming standards from the reach of Price Waterhouse. Such discrimination is clearly and unambiguously impermissible under Title VII, which requires that “gender must be irrelevant to employment decisions.” Price Waterhouse v. Hopkins, 490 U.S. If a grooming standard imposed on either sex amounts to impermissible stereotyping, something this record does not establish, a plaintiff of either sex may challenge that requirement under Price Waterhouse. In other words, I agree with the majority that a Title VII plaintiff may make out a prima facie case by showing that the challenged policy either was motivated in part “because of a sex stereotype,” Maj.
Op. at 1110. Finally, I agree with the majority that Jespersen failed to introduce sufficient evidence to establish that Harrah’s “Personal Best” program created an undue burden on Harrah’s female bartenders.1 I part ways with the majority, however, inasmuch as I believe that the “Personal Best” program was part of a policy motivated by sex stereotyping and that Jespersen’s termination for failing to comply with the program’s requirements was “because of” her sex. The program also contained some sex-differentiated appearance requirements as to hair, nails, and makeup. This case stands in marked contrast, for here we deal with requirements that, on their face, are not more onerous for one gender than the other. The inescapable message is that women’s undoctored faces compare unfavorably to men’s, not because of a physical difference between men’s and women’s faces, but because of a cultural assumption-and gender-based stereotype-that women’s faces are incomplete, unattractive, or unprofessional without full makeup. While a man could jog to the casino, slip into his uniform, and get right to work, a woman must travel to work so as to avoid smearing her makeup, or arrive early to put on her makeup there. Nor is there evidence in this record that Harrah’s treated Jespersen any differently than it treated any other bartender, male or female, who did not comply with the written grooming standards applicable to all bartenders.
Nor is there any rational doubt that application of makeup is an intricate and painstaking process that requires considerable time and care. 201. The time and cost of makeup and haircuts is in neither category. The cost of makeup and time needed to apply it can both be quantified as can, for example, the cost of haircuts and time needed for nail trimming; had a record been offered in this case to establish the alleged undue burden on women, the district court could have evaluated it. The record contains nothing to suggest the grooming standards would objectively inhibit a woman’s ability to do the job. Nor do I think it appropriate for a court to dismiss a woman’s testimony that she finds wearing makeup degrading and intrusive, as Jespersen clearly does. During Jespersen’s entire tenure with Harrah’s, the company maintained a policy encouraging female beverage servers to wear makeup. It might have been tidier if Jespersen had introduced evidence as to the time and cost associated with complying with the makeup requirement, but I can understand her failure to do so, as these hardly seem like questions reasonably subject to dispute.
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