9th Circuit Court Decision: Employers Can Require Women's Makeup

The 9th U.S. Circuit Court of Appeals ruled on December 28th, 2004 that a female employee fired for refusing to wear makeup cannot sue her employer for sex discrimination. Darlene Jespersen had been employed by Harrah’s Resorts as a bartender in Reno for over two decades. In 2000 Harrah's put into place a “Personal Best” policy that required female employees to wear their hair "teased, curled or styled," and wear "foundation/concealer and/or face powder, as well as blush and mascara," nail polish, and lipstick. Male bartenders at Harrah's were only required to wear their hair above the collar and keep their nails clean and neatly trimmed.

Jespersen was fired when she objected that the new standards "forced her to be feminine" and made her feel "dolled up" like a sex object. Jespersen said that when she had worn makeup in the past, she had felt that it interfered with her ability to win the respect of customers that would be necessary or her to deal with them when they were unruly. This sounds like a clear case of discrimination based on sex stereotypes, no? Well, no: the 2-1 decision rejected Jespersen’s suit, saying that she had not shown that feminine standards were significantly more burdensome than those imposed on men. Sounds like these judges had never had to put on makeup or curl their hair. The Court held that sex stereotyping rulings – such as the landmark Supreme Court case decision Hopkins v. Price Waterhouse – did not specifically address the issue of sex-differentiated grooming standards.

In the dissenting opinion, Judge Sidney Thomas stated, "Harrah's fired Jespersen because of her failure to confirm to sex stereotypes, which is discrimination based on sex and is therefore impermissible under Title VII (of the US Civil Rights Act)." The decision was largely ignored by the mainstream media and mainstream feminist organizations, perhaps due to the fact that it was announced between the Christmas and New Year holidays.
More about this court case Statement from GenderPAC, the national advocacy organization working to end discrimination and violence caused by gender stereotypes. 2001 Mother Jones Article Barbwire History of the Case 2/5/04: Case is about civil rights and sex bias by Darlene Jespersen