Unwilling to wear the makeup, and not qualifying for any open positions at the casino with a similar compensation scale, Jespersen left her employment with Harrah’s. The plaintiff, Darlene Jespersen, was terminated from her position as a bartender at the sports bar in Harrah’s Reno casino not long after Harrah’s began to enforce its comprehensive uniform, appearance and grooming standards for all bartenders. Hopkins, the Price Waterhouse plaintiff, offered individualized evidence, describing events in which she was subjected to discriminatory remarks. 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. Quite simply, her termination for failing to comply with a grooming policy that imposed a facial uniform on only female bartenders is discrimination “because of” sex. I believe that Jespersen articulated a classic case of Price Waterhouse discrimination and presented undisputed, material facts sufficient to avoid summary judgment. We agree with the district court and the panel majority that on this record, Jespersen has failed to present evidence sufficient to survive summary judgment on her claim that the policy imposes an unequal burden on women.
The district court correctly granted summary judgment on the record before it with respect to Jespersen’s claim that the makeup policy created an unequal burden for women. Jespersen, 280 F.Supp.2d at 1193. The district court granted summary judgment to Harrah’s on all claims. I agree with the majority that appearance standards and grooming policies may be subject to Title VII claims. We cannot agree, however, that her objection to the makeup requirement, without more, can give rise to a claim of sex stereotyping under Title VII. This record, however, is devoid of any basis for permitting this particular claim to go forward, as it is limited to the subjective reaction of a single employee, and there is no evidence of a stereotypical motivation on the part of the employer. 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. We emphasize that we do not preclude, as a matter of law, a claim of sex-stereotyping on the basis of dress or appearance codes. The district court also held that the policy could not run afoul of Title VII because it did not discriminate against Jespersen on the basis of the “immutable characteristics” of her sex.
In Gerdom v. Cont’l Airlines, Inc., 692 F.2d 602 (9th Cir.1982), we considered the Continental Airlines policy that imposed strict weight restrictions on female flight attendants, and held it constituted a violation of Title VII. We did so because the airline imposed no weight restriction whatsoever on a class of male employees who performed the same or similar functions as the flight attendants. 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. Jespersen did not submit any documentation or any evidence of the relative cost and time required to comply with the grooming requirements by men and women. Grooming standards that appropriately differentiate between the genders are not facially discriminatory. A makeup requirement must be seen in the context of the overall standards imposed on employees in a given workplace. The requirements must be viewed in the context of the overall policy. As the majority concedes, “Harrah’s ‘Personal Best’ policy contains sex-differentiated requirements regarding each employee’s hair, hands, and face.” Maj.
Therefore, I strongly disagree with the majority’s conclusion that there “is no evidence in this record to indicate that the policy was adopted to make women bartenders conform to a commonly-accepted stereotypical image of what women should wear.” Maj. Notwithstanding Jespersen’s failure to present additional evidence, little is required to make out a sex-stereotyping-as distinct from an undue burden-claim in this situation. You don’t need an expert witness to figure out that such items don’t grow on trees. 251-52, 109 S.Ct. 1775; see also id. See id.; see also Fed. 251, 109 S.Ct. 1775 (quoting Los Angeles Dept. of Water & Power v. Manhart, 435 U.S. Price Waterhouse, 490 U.S. Dothard v. Rawlinson, 433 U.S. Pac. R.R. Co., 527 F.2d 1249, 1252 (8th Cir.1975); Willingham v. Macon Tel. Co., 549 F.2d 400, 401 (6th Cir.1977); Earwood v. Cont’l Southeastern Lines, Inc., 539 F.2d 1349, 1350 (4th Cir.1976); Longo v. Carlisle DeCoppet & Co., 537 F.2d 685, 685 (2d Cir.1976) (per curiam); Knott v. Mo. The stereotyping in Price Waterhouse interfered with Hopkins’ ability to perform her work; the advice that she should take “a course at charm school” was intended to discourage her use of the forceful and aggressive techniques that made her successful in the first place.
