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The casino bartender who refused to wear makeup because it “forced her to be feminine” may yet prevail at the 9th U.S. Circuit Court of Appeals. The court had tossed Darlene Jespersen’s case in December, ruling that Harrah’s did not commit sex discrimination when it fired her. But on Friday afternoon, the court announced it was taking up Jespersen v. Harrah’ s, 04 C.D.O.S. 11332, en banc. 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 Judge Barry Silverman said Harrah’s policy on personal grooming did not put a higher burden on women than on men. Sidney Thomas dissented, saying that a jury easily could have found that the makeup requirement illegally requires female employees to conform to sex stereotypes. Jespersen worked as a sports bartender at Harrah’s in Reno for nearly two decades. The company changed its appearance standards in 2000 and began requiring female bartenders to use nail polish and wear their hair down. The rule was amended to add makeup. Male bartenders were required to wear their hair above the collar and keep their nails clean and neatly trimmed. Makeup, ponytails and nail polish were banned for men. Jespersen landed in the 9th Circuit on an appeal of a district court summary judgment ruling.

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