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The Ninth Circuit U.S. Court of Appeals explored the cost of women’s bathing suits and whether men can be comfortable wearing mascara during lively en banc arguments Wednesday over a Harrah’s casino bartender fired for refusing to wear makeup. Judge Alex Kozinski brought up the bathing suits as a hypothetical. “What if you employed swim [instructors] and you required they wear bathing suits?” Kozinski asked Lambda Legal’s Jennifer Pizer, who represents plaintiff Darlene Jespersen. Highlighting a possible “burden,” Kozinski said women have to wear different garments than men in order to cover their breasts. Plus, he said, “I think it’s probably true that women’s bathing suits are more expensive.” Pizer said that was an excellent example of what constituted a “reasonable business necessity,” which she argues Harrah’s does not have. The hypotheticals were designed to test Jespersen’s sex discrimination claim. Harrah’s fired her from her job tending bar at its sportsbook in Reno when she refused to conform to new “Personal Best” guidelines, which required, among other things, that men keep their hair short and women wear makeup. The judges who spoke went after lawyers for both sides equally, so it’s tough to tell which way the 11-member panel will go. As is often the case, Kozinski fired hard-hitting questions at both sides. To demonstrate that the burden on male and female employees might not be “unequal,” as Pizer argued, Kozinski pointed out there were standards for men, too. Men have to keep their hair short and refrain from wearing makeup. The judge revealed that one of his male secretaries used to wear makeup because it made him feel more comfortable. “I wouldn’t be comfortable wearing makeup,” Kozinski assured the packed courtroom. Judges Susan Graber, Consuelo Callahan and Pamela Ann Rymer were skeptical about Jespersen’s claims. “Of course, the man has to cut his hair,” Callahan said. “He cannot wear his hair the way he wants.” Although Pizer said there was evidence that the Harrah’s requirements put unequal burdens on men and women, the three female judges seemed unconvinced. “Both men and women have to do different things in the morning,” Rymer said. “There’s no evidence to show that one is a burden on job opportunity.” But Graber also said she was bothered by the position taken by Patrick Hicks of Littler Mendelson, who argued on behalf of Harrah’s. The policy on male and female employee appearances is “not uniform,” Graber said. “Clearly people aren’t going to look the same.” Kozinski jumped in with another hypothetical about whether Hicks’ law firm could require him to wear makeup in public. “Why isn’t it the same for Ms. Jespersen?” Kozinski asked. “I think all dress and grooming standards take into account social norms,” Hicks said. “The question is ‘what is the burden?’” Also on the en banc panel were Chief Judge Mary Schroeder and Judges Harry Pregerson, William Fletcher, Richard Tallman, Barry Silverman, Richard Clifton and Carlos Bea. Jespersen was with Harrah’s for nearly two decades. Five years ago, the company changed its appearance standards to require female bartenders to look more feminine by wearing their hair down and using nail polish and makeup. Male bartenders had to keep their hair above the collar, keep their nails clean and neatly trimmed and couldn’t wear makeup, ponytails or nail polish. 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, according to court records. After she was fired, Jespersen sued, but lost on summary judgment in district court in 2002 and in front of a divided three-judge Ninth Circuit panel in December. The case attracted numerous amici curiae, including the American Civil Liberties Union, the National Employment Lawyers Association and the American Hotel & Lodging Association. In the original decision, Senior Judge A. Wallace Tashima and Silverman said the Harrah’s policy on personal grooming did not put a higher burden on women than on men. 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. The three-judge Ninth Circuit case was Jespersen v. Harrah’s, 04 C.D.O.S. 11332.

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