Gay, transgendered seek workplace equality

By Peter Schelden
Sparks Tribune Staff
March 17, 2005

When bartender Darlene Jespersen began working for Harrah's Reno in 1979, she wasn't looking for a fight. The company's dress code required women to wear makeup, but Jespersen was allowed to work as a dishwasher, barback and eventually a bartender without makeup for many years.

"I found it very degrading and humiliating that I would have to wear makeup ... to take the trash out or stock beer," Jespersen said at a Workplace Equality Power rally held Tuesday at the Speakeasy Casino in Reno. The makeup policy was not enforced until a "Personal Best" workplace policy took effect in 2000.

"I was told it was because of the lighting, that the (casino) lighting washed my face out," Jespersen said. "But the men didn't have to do it."

Jespersen believed she was the victim of gender discrimination, and that women were being forced to pay for, apply and wear makeup while men had no such requirements made of their appearance.

"At one point they told me I had to do it because I was a woman, and if I didn't, I couldn't be a bartender," Jespersen said. Jespersen was fired for refusing to wear makeup, and then sued Harrah's. Last December, the 9th Circuit Court of Appeals ruled against Jespersen. The divided court ruled that employers have the right to discriminate between men and women where dress codes are concerned, so long as both groups are equally burdened.

Lambda Legal Group lawyer Jenny Pizer argued the "Personal Best" program created an unequal burden between men and women.

"(Women) are required to do it in a way that is expensive and time-consuming, and it takes away their individuality," Pizer said. "The only requirement for men is to not wear makeup, not buy it, not spend time putting it on. So it's an unequal burden."

Pizer said the court's ruling mandates uncomfortable dress for women, an expectation she said women have been held to for many years.

"Whale bone corsets, high heels, makeup there are a lot of things women have been expected to wear," Pizer said. "The issue here is choice."

But this ruling raises more complicated questions for people whose bodies don't coincide with their gender. Men who express themselves as women through hormone therapies and sex reassignment surgeries often deal with the confusion of office dress code policies. And other workplace problems exist for such people, such as use of company restrooms.

Many believe that companies should be allowed to cater to the preferences of their customers, but Pizer compared this approach to allowing only black people to serve food.

"If customer preference were a defense, there would be no reason to have an employer discrimination law," Pizer said.

According to Ben Felix with Reno's A Rainbow Place, a recent Nevada survey showed that 65 percent of gay, bisexual and transgendered respondents claim to have lost a job or experienced harassment at work because of their sexual orientation or gender presentation.

Theresa Nicks of the Nevada Equal Rights Commission, a state organization that investigates discrimination complaints, said people who choose to present their genders differently are protected from workplace discrimination.

"You have a right to complain about behaviors that you think are illegal," Nicks said. The law upholds these protections, but proving discrimination can be difficult, especially in an employ-at-will state like Nevada.

"The burden of proof is on the person making the claim," Nicks said.

Jespersen said fighting discrimination can be costly.

"It took two and a half years before I could get a real job," Jespersen said. "I had to work through temp services."

Pizer said being fired and suing a former employer can be difficult to explain to future employers.

"It doesn't have to be a conspiracy," Pizer said.

Nicks said it is important for people to know their rights with regard to discrimination.

"People are often uninformed about even those basic rights that they have," Nicks said.

Copyright © 2005 Daily Sparks Tribune
Used by permission.

Darlene Jespersen's complete story and photos + links


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