Ninth Circuit Decides Makeup Requirement not Sex-Biased

The seven-judge majority of the panel of 11 agreed that the plaintiff, Darlene Jespersen, did not provide enough evidence that applying makeup was a hardship, and that they would not make their own judgment on the issue.   The decision affirmed the district court and earlier 9 ^th Circuit rulings dismissing the case (See Appeals Court Upholds Dismissal of Fired Bartender’s Makeup Suit).

Jespersen sued Harrah’s saying she was fired for refusing to wear makeup in violation of its grooming and appearance policy.   The company had encouraged female employees to wear makeup, but in 2000 adopted a policy requiring that “Make up (face powder, blush and mascara) must be worn and applied neatly in complimentary colors. Lip color must be worn at all times.”  

Jespersen did not wear makeup on or off work and claimed that wearing the makeup made her feel uncomfortable and “demeaned.”   In writing for the majority, Chief Judge Mary Schroeder said, “We respect Jespersen’s resolve to be true to herself and to the image that she wishes to project to the world. We cannot agree, however, that her objection to the makeup requirement, without more, can give rise to a claim of sex stereotyping under Title VII. If we were to do so, we would come perilously close to holding that every grooming, apparel or appearance requirement that an individual finds personally offensive, or in conflict with his or her own self-image, can create a triable issue of sex discrimination.”

Schroeder did allow, however, that dress and appearance codes can be discriminatory, saying, “We emphasize that we do not preclude, as a matter of law, a claim of sex-stereotyping on the basis of dress or appearance codes. Others may well be filed, and any bases for such claims refined as law in this area evolves.”

Judges Alex Kozinski, Susan Graber, William Fletcher, and Harry Pregerson dissented with the opinion.   In his dissent, Pregerson said, “Jespersen’s evidence showed that Harrah’s fired her because she did not comply with a grooming policy that imposed a facial uniform (full makeup) on only female bartenders.”   Adding to why he believes the policy to be discriminatory, he said, “The inescapable message is that women’s undoctored faces compare unfavorably to men’s, not because of a physical difference between men’s and women’s faces, but because of a cultural assumption – and gender-based stereotype – that women’s faces are incomplete, unattractive, or unprofessional without full makeup.”

The decision in Jespersen v. Harrah’s Operating Company is here .