Intersectional Approaches to Appearances: Jespersen v. Harrah's Operating Co., 444 F.3d 1104 (9th Cir. 2006) (en banc) Judgment

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Book Chapter

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Ann C. McGinley and Nicole Buonocore Porter




Cambridge University Press




This case concerns the termination of a female casino employee, Darlene Jespersen, based solely on her refusal to comply with her employer’s gendered appearance and grooming policy. The policy required that female employees wear a specific kind and style of makeup and wear their hair down and teased, curled, or styled, while it forbade male employees from wearing any makeup, having long hair, and wearing nail polish. Jespersen was discharged for refusing to wear makeup on the job, and she subsequently brought a sex discrimination claim under Title VII of the Civil Rights Act of 1964, alleging that the makeup requirement was discriminatory against women because it (1) imposed a greater burden on female employees than male employees, and (2) forced women to conform to a restrictive gender stereotype as a condition of employment.

The district court granted summary judgment in favor of the employer, reasoning that the makeup policy was reasonable, restricted men and women, and therefore did not violate Title VII. A three-judge panel affirmed the district court’s opinion, with the majority holding that Jespersen had failed to show that Harrah’s grooming policy affected men and women unequally and that a sex-stereotyping claim could survive only if the grooming standards amounted to sexual harassment. Jespersen v. Harrah’s Operating Co., 444 F.3d 1104 (9th Cir. 2004). We disagree with the original panel and reverse the district court’s ruling on both the disparate treatment and sex-stereotyping grounds.

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