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San Francisco—In an opinion likely to raise the ire of civil rights and feminist groups, a divided 9th U.S. Circuit Court of Appeals ruled last week that a woman who was fired from her job as a casino bartender for refusing to wear makeup cannot sue for sex discrimination. The 2-1 decision rejected bartender Darlene Jespersen’s argument that Harrah’s Operating Co. violated her rights when it implemented “Personal Best” image standards requiring women to wear makeup and men to trim their fingernails and keep their hair short. “Even if we were to take judicial notice of the fact that the application of makeup requires some expenditure of time and money, Jespersen would still have the burden of producing some evidence that the burdens associated with the makeup requirement are greater than the burdens the ‘Personal Best’ policy imposes on male bartenders,” Senior Judge A. Wallace Tashima wrote for the majority. Jespersen v. Harrah‘s, No. 04 C.D.O.S. 11332. Judge Sidney Thomas dissented, saying that a jury easily could have found that the makeup requirement illegally requires female employees to conform to sex stereotypes, or that it places more of a burden on women than Harrah’s male grooming standards. “Sex-differentiated appearance standards stemming from stereotypes that women are unfit for work, fulfill a different role in the workplace, or are incapable of exercising professional judgment systematically impose a burden on women, converting such stereotypes into stubborn reality,” Thomas wrote. Jespersen worked as a sports bartender at Harrah’s in Reno, Nev., for nearly two decades and received exemplary performance evaluations. Harrah’s encouraged female beverage servers to wear makeup, but it was not required. Jespersen briefly tried wearing makeup but later stopped because she felt it “forced her to be feminine” and to become “dolled up” like a sex object. A ‘brand standard’ The company changed its appearance standards in 2000, announcing the goal of a “brand standard of excellence.” It required female bartenders to use nail polish and wear their hair down and either “teased, curled or styled.” Later, the rule was amended to add makeup, which Harrah’s defined as “foundation/concealer and/or face powder, as well as blush and mascara,” plus lip color. Male bartenders, meanwhile, were required to wear their hair above the collar and keep their nails clean and neatly trimmed. Jespersen was terminated in July 2000 after refusing to comply with the makeup requirements. A district court granted summary judgment for Harrah’s, ruling that its policy did not impose unequal burdens on the sexes.

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