Tuesday, June 08, 2004
Copyright © Las Vegas Review-Journal

NEVADA SUPREME COURT: Court upholds no-cosmetics firing

Bartender dismissed for not wearing makeup

CARSON CITY -- The firing of a female Harrah's bartender who refused to wear makeup was upheld 3-0 Monday by a Nevada Supreme Court panel.

Justices ruled that Harrah's in Reno was justified in firing bartender Darlene Jespersen since Nevada is an "at-will" employment state. Employees can be terminated for any reason unless it's determined to be discriminatory or covered by an employment agreement.

"Subject to limited public policy exceptions, an employer may discharge an at-will employee for any reason," the court stated.

The refusal to wear makeup is not one of the exceptions at-will employees can use to challenge firings, the court noted. State law only makes it unlawful to fire employees for discrimination based on their "race, color, religion, sex, sexual orientation, age, disability or national origin."

Jespersen was hired by Harrah's in 1979 as a dishwasher. A year later she became a bartender and remained in that position until 2000 when she was fired for failing to comply with a company policy that all female employees wear makeup. Before her firing, she had received "numerous reviews and letters detailing her above average performance and acceptable appearance," according to the Supreme Court.

Her lawyer, Kenneth McKenna, said Jespersen is a naturally attractive woman who was "highly offended she had to doll herself up to look like a hooker."

"It is outrageous for Harrah's to think women need rouge and plush," he said. "Darlene stood up for her civil rights and it has cost her dearly."

McKenna said she has been blackballed from working in the gaming industry and now holds a job in a retail store.

Jespersen initially wore makeup, but stopped because it "made her feel extremely uncomfortable ... ill and violated," according to the Supreme Court decision. She claimed Harrah's knew of makeup's effect on her and did not require her to wear it for years. She contended that lack of action constituted an impled employment contract that negates the state's at-will employment policy.

In addition, Jespersen contended that since men were not subject to the makeup policy, Harrah's was discriminating against her "on the basis of her sex due to gender stereotyping." She asked the court to declare a public policy against gender discrimination based on stereotyping.

But in the decision, the justices stated that even if Jespersen were permitted to continue working because Harrah's did not enforce its makeup policy, that reason is "insufficient to convert an at-will employment into one allowing termination only for cause."

McKenna said Jespersen has a concurrent case involving her firing on appeal with the 9th U.S. Circuit Court of Appeals in San Francisco. He is charging the firing violated Jespersen's civil rights.

Justices backing the firing were Chief Justice Miriam Shearing, along with Bob Rose and Michael Douglas.