Jespersen v. Harrah’s
The Matter.
Title VII sex-discrimination appeal argued before the full eleven-judge en banc Ninth Circuit. The four-judge dissent adopted the sex-stereotyping argument Mr. McKenna advanced at every stage.
What the record shows.
- ¶ 01
Darlene Jespersen worked as a bartender at Harrah’s Reno for twenty-one years. In August 2000, Harrah’s introduced the “Personal Best” grooming program. Female beverage servers were required to wear makeup — foundation, blush, mascara, and lipstick — applied to a photographic standard; male beverage servers were prohibited from wearing makeup. Jespersen refused. Harrah’s terminated her.
- ¶ 02
Mr. McKenna filed suit in the United States District Court for the District of Nevada before Judge Edward C. Reed. The theory was Title VII sex discrimination on two grounds: that the grooming policy imposed an unequal burden on female employees, and that it constituted impermissible sex stereotyping under Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). The district court granted summary judgment to Harrah’s. Jespersen v. Harrah’s Operating Co., 280 F. Supp. 2d 1189 (D. Nev. 2002).
- ¶ 03
Mr. McKenna appealed. Lambda Legal joined as co-counsel for the appellate phase. A three-judge panel of the Ninth Circuit affirmed. Jespersen v. Harrah’s, 392 F.3d 1076 (9th Cir. 2004). Mr. McKenna then successfully pushed for en banc reconsideration — a rarity requiring a demonstration that the case presented unresolved or conflicting questions of circuit law. The full Ninth Circuit granted the petition and took the case “to reaffirm our circuit law concerning appearance and grooming standards, and to clarify our evolving law.”
- ¶ 04
Eleven judges heard en banc reargument: Chief Judge Schroeder with Judges Pregerson, Kozinski, Rymer, Silverman, Graber, W. Fletcher, Tallman, Clifton, Callahan, and Bea. The court ruled 7–4 against Jespersen on the unequal-burden theory while explicitly leaving the door open to future unequal-burden challenges on a fuller record. A four-judge dissent adopted the sex-stereotyping argument Mr. McKenna had carried from the trial-court phase forward. The en banc decision at 444 F.3d 1104 now appears in employment-law casebooks alongside Price Waterhouse.
The path through the courts.
- STEP 01En BancJespersen v. Harrah's, 444 F.3d 1104 (9th Cir. 2006)Reported
- STEP 02Panel392 F.3d 1076 (9th Cir. 2004)Reported
- STEP 03District280 F. Supp. 2d 1189 (D. Nev. 2002)Reported
The majority opinion narrowed but did not close the sex-stereotyping doctrine. The four-judge dissent supplied the analytical framework that appears in subsequent appearance-policy challenges. The decision is taught in Title VII casebooks and is cited for the proposition that appearance-based distinctions remain subject to scrutiny under the sex-stereotyping theory where the record supports it.
Lead / Counsel of record — Kenneth J. McKenna, Nevada Bar № 1676
This matter sits within Mr. McKenna’s Trial Counsel for Attorneys practice.