Jespersen v. Harrah’s

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.

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).

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.”

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.

Lead counsel from filing through en banc reargument. Mr. McKenna carried the case for approximately four years: trial-court pleadings and summary-judgment briefing, three-judge panel argument at the Ninth Circuit, the petition for rehearing en banc, and the en banc argument itself. Lambda Legal joined as co-counsel for the appellate phase.