Academic journal article Harvard Law Review

Title VII - Sex Discrimination - Ninth Circuit Holds That Women Can Be Required to Wear Makeup as a Condition of Employment

Academic journal article Harvard Law Review

Title VII - Sex Discrimination - Ninth Circuit Holds That Women Can Be Required to Wear Makeup as a Condition of Employment

Article excerpt


Despite evidence that women have not yet achieved full equality in the workplace, (1) overt sex discrimination is supposedly an artifact of the past. (2) Yet recently, in Jespersen v. Harrah's Operating Co., (3) the Ninth Circuit Court of Appeals undermined federal antidiscrimination principles by holding that female employees can sometimes be required to wear makeup as a condition of employment. (4) In so holding, the court mistakenly refused to apply the rule prohibiting discrimination on the basis of sexual stereotypes, as established by the Supreme Court in Price Waterhouse v. Hopkins, (5) and issued an unfortunate decision contravening the spirit and purpose behind federal employment discrimination law. Instead, the Jespersen court should have recognized that Harrah's relied on sex stereotyping that created exactly the employment limitations the Price Waterhouse Court held impermissible, and should therefore have invalidated the policy at issue.

Darlene Jespersen worked as a bartender at the sports bar at Harrah's Casino in Reno, Nevada, for almost twenty years. (6) By all accounts, she was "an outstanding employee," repeatedly praised by supervisors and customers alike. (7) In early 2000, Harrah's introduced its "Beverage Department Image Transformation" initiative, which required beverage servers at the Reno casino to adhere to "Personal Best" appearance standards. (8) In addition to gender-neutral standards, (9) the initiative included gender-specific requirements. Men were required to maintain short hair and neat, trim fingernails, and to refrain from wearing makeup or colored nail polish. (10) Women were required to "tease[], curl[], or style[]" their hair, and to wear natural colored pantyhose and only clear, white, pink, or red nail polish. (11) Women were also required to wear makeup, including foundation, concealer, or powder, as well as mascara, blush, and lip color, "in complimentary colors ... at all times." (12)

Jespersen did not comply with the makeup requirement, reporting that it "made her feel sick, degraded, exposed, and violated," and was fired as a result. (13) After unsuccessfully pursuing an administrative remedy with the Equal Employment Opportunity Commission (EEOC), Jespersen brought suit under Title VII of the Civil Rights Act of 1964 (14) alleging several theories of disparate treatment sex discrimination. (15) Jespersen initially argued that the sex-differentiated makeup requirement imposed unequal burdens on men and women. (16) She also argued that the makeup requirement forced women to conform to sexual stereotypes in violation of the rule announced in Price Waterhouse. (17) Finally, Jespersen alleged same-sex sexual harassment. (18)

Harrah's moved for summary judgment on all claims, (19) and the district court granted the motion. (20) Following the Ninth Circuit's decision in Frank v. United Airlines, Inc., (21) the court reasoned that sex-differentiated appearance standards that impose equal burdens on men and women do not violate Title VII. (22) The court found that the Harrah's appearance standards, taken together, imposed equal burdens on men and women, and therefore that the makeup requirement did not constitute unlawful disparate treatment. (23) Further, relying on its understanding of Ninth Circuit precedent, the court summarily rejected the application of Price Waterhouse to grooming and appearance standards. (24) The court then quickly dispensed with Jespersen's other claims, finding no evidence to sustain them. (25)

Jespersen appealed the grant of summary judgment on her disparate treatment claims, and a three-judge panel of the Ninth Circuit affirmed in a 2-1 decision. (26) Judge Tashima, writing for the court, (27) explained that "employers are free to adopt different appearance standards for each sex," as long as those standards do not "impose a greater burden on one sex than the other. …

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