SAN FRANCISCO-A casino cannot be sued for sex discrimination for firing a female bartender over her refusal to wear makeup, says the 9th U.S. Circuit Court of Appeals.

In its 2-1 ruling, a 9th Circuit panel in San Francisco held that Harrah's Casino in Reno, Nev., did not violate Title VII of the federal Civil Rights Act when it fired Darlene Jespersen because she refused to wear makeup, as required under the casino's appearance rules. Ms. Jespersen's attorney plans to ask the full court to reconsider the Dec. 29 decision.

According to the opinion, Ms. Jespersen was considered an outstanding employee during the nearly 20 years she worked at Harrah's. Throughout the 1980s and '90s, Harrah's encouraged-but did not formally require-its female beverage servers to wear makeup. Ms. Jespersen tried doing so for a short time but found it "made her feel sick, degraded, exposed and violated," according to the decision.

In 2000, Harrah's implemented a "Beverage Department Image Transformation Program" that required female beverage servers to wear stockings and colored nail polish and to tease, curl or style their hair. Men were prohibited under the program from wearing makeup or colored nail polish and were required to maintain short haircuts and neatly trimmed fingernails. Shortly afterward, Harrah's amended its standards to also require female beverage servers to wear makeup under its "Personal Best" program.

Ms. Jespersen was terminated when she refused to follow the rule on makeup. She sued the casino, charging it with sex discrimination.

In upholding a lower court decision dismissing the case, the appellate court said Ms. Jespersen "had the burden of producing admissible evidence that the `Personal Best' appearance standard imposed a greater burden on female beverage servers than it does on male beverage servers. ...She has not met that burden."

The court said the U.S. Supreme Court's 1989 decision in Price Waterhouse vs. Hopkins, in which the court held an employer may not force its employees to conform to sex stereotypes, does not apply. The Price Waterhouse case involved an employee who was told her partnership chances would be improved if she learned to behave more femininely, including by wearing makeup.

Although "we have applied the reasoning of Price Waterhouse to sexual harassment cases, we have not done so in the context of appearance and grooming standards cases, and we decline to do so here," the decision states.

In his dissent, Judge Sidney R. Thomas said: "Harrah's fired Jespersen because of her failure to conform to sex stereotypes, which is discrimination based on sex and is therefore impermissible" under civil rights law. In addition, "Jespersen created a triable issue of fact as to whether the policy imposed unequal burdens on men and women, because the policy imposes a requirement on women that is not only time-consuming and expensive but burdensome for its requirement that women conform to outdated and impermissible sex stereotypes."

A spokesman for Harrah's said there is "a long history of case law that upholds employers' right to impose certain appearance standards on employees who are dealing with the public, and this is just the latest in that series of cases."

Gary Peck, executive director of the Las Vegas-based American Civil Liberties Union of Nevada, which submitted an amicus brief on Ms. Jespersen's behalf, said: "We think it is odd that the majority would argue that the case wasn't about sex discrimination when the rules that were enforced were so obviously intensely gender-based and gender-based in a way that plays to gender stereotypes. It's really not about job performance."

Ms. Jespersen's attorney, Jennifer C. Pizer, senior counsel in Lambda Legal Defense & Education Fund Inc.'s Western regional office in Los Angeles, said in a statement that the decision "misapplies key legal precedents that have protected working women for many years." Title VII "requires the protection of women from burdensome sex stereotypes," but the appellate decision "makes those protections hollow," said Ms. Pizer.

Darlene Jespersen vs. Harrah's Operating Co. Inc., No. 03-15045, 9th U.S. Circuit Court of Appeals