Academic journal article Harvard Law Review

Title VII - Gender Discrimination - Ninth Circuit Holds That Women Can Be Fired for Refusing to Wear Makeup

Academic journal article Harvard Law Review

Title VII - Gender Discrimination - Ninth Circuit Holds That Women Can Be Fired for Refusing to Wear Makeup

Article excerpt

TITLE VII--GENDER DISCRIMINATION--NINTH CIRCUIT HOLDS THAT WOMEN CAN BE FIRED FOR REFUSING TO WEAR MAKEUP.--Jespersen v. Harrah's Operating Co., 444 F.3d 1104 (9th Cir. 2006) (en banc).

Gender inequality continues to permeate American culture, affecting women both socially and economically. In their personal lives, many women experience insecurity about their appearance on a daily basis. In the workplace, women with all levels of educational experience earn substantially less than their male counterparts. (1) Gender inequality is exacerbated when the personal effects of the narrow standard of beauty are combined with economic barriers facing women. In Jespersen v. Harrah's Operating Co., (2) the Ninth Circuit held that a female bartender terminated for refusing to wear makeup did not establish a prima facie case of gender discrimination under Title VII. (3) Future plaintiffs should respond by presenting evidence of economic, physical, and psychological harms to prove that a requirement that women wear makeup imposes an unequal burden based on gender.

Darlene Jespersen was a bartender at Harrah's casino in Reno, Nevada, for over twenty years. (4) During that time, she was an exemplary employee who received positive reviews from both customers and supervisors. (5) In February 2000, Harrah's instituted a "Beverage Department Image Transformation" program requiring all bartenders, male and female, to wear a standard uniform and "be well groomed, appealing to the eye, [and] be firm and body toned." (6)

In addition to these general requirements, the policy contained gender-specific requirements. Men had to keep short hair and trimmed fingernails. (7) Women were required to have their hair "teased, curled, or styled every day" (8) and were also required to wear makeup--including foundation, blush, mascara, and lipstick--every day. (9) The policy required women to meet with image consultants and wear their makeup as the consultants directed. (10)

Jespersen complied with the appearance policy in every respect except for the makeup requirement. (11) She did not wear makeup on or off the job and said that "wearing it would conflict with her self-image." (12) She found the makeup requirement offensive and saw it as further evidence that Harrah's "'sells' and exploits its women employees." (13) She "felt very degraded and very demeaned," (14) claiming that the makeup requirement "prohibited [her] from doing [her] job" (15) because "[i]t affected [her] self-dignity" (16) and "took away [her] credibility as an individual and as a person." (17) For these reasons, she refused to wear makeup, and she "was effectively terminated for that reason." (18)

Jespersen sued Harrah's for gender discrimination under Title VII of the Civil Rights Act of 1964, (19) arguing that the appearance standards imposed unequal burdens on women and required women to conform to gender stereotypes. (20) The United States District Court for the District of Nevada granted summary judgment for Harrah's, finding that, although women were required to wear makeup, men were required to have short hair, so the burdens imposed by the policy were equal. (21) The district court also held that, under Ninth Circuit precedent, appearance standards were not impermissible gender stereotyping. (22) A three-judge panel of the Ninth Circuit affirmed, holding that Jespersen had failed to submit sufficient evidence to show that the burdens imposed by the policy were unequal and that the appearance standards did not constitute impermissible gender stereotyping. (23)

On rehearing en banc, the Ninth Circuit affirmed by a 7-4 vote. Writing for the court, Chief Judge Schroeder (24) stated that there was no evidence in the record to support a finding of unequal burdens. (25) Jespersen argued that the makeup requirement, on its face, imposed unequal burdens. (26) However, Chief Judge Schroeder explained that employers can distinguish between genders with different standards for appearance, as long as one gender is not burdened more than the other. …

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