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Abstract

In Jespersen v. Harrah’s Operating Co., Harrah’s Casino (Harrah’s) gave Darlene Jespersen (Jespersen), a female employee, thirty days to comply with the new mandatory makeup requirement the business imposed on its female beverage service employees. Jespersen refused, thirty days passed, and Harrah’s immediately terminated her. After unsuccessfully seeking administrative relief with the Equal Employment Opportunity Commission (EEOC), Jespersen filed a lawsuit against Harrah’s in federal district court. The claim alleged “disparate treatment sex discrimination” by Harrah’s in violation of Title VII. Subsequently, Harrah’s moved for summary judgment, and the district court granted the motion. The court found that Harrah’s employee appearance standards for beverage service employees imposed equal burdens on both its male and female employees. Moreover, the court found that Jespersen was not discriminated against based on any “immutable characteristic” of her sex. Consequently, Jespersen filed a timely appeal to the United States Court of Appeals for the Ninth Circuit. A divided panel of judges upheld the decision of the district court, finding that Jespersen failed to raise any genuine issue of material fact as to whether Harrah’s policy violates the umbrella of Title VII protections. The appeal provided the Ninth Circuit with an opportunity to find Harrah’s actions unlawful through the company’s imposition of a costly and demeaning makeup policy on its female service employees. Moreover, the appeal provided the Ninth Circuit with a critical opportunity to adopt the progressive decision of the United States Supreme Court in Price Waterhouse v. Hopkins. This groundbreaking case held that an employee could institute a Title VII action against her employer if she could prove she was discriminated against in the form of sexual stereotyping. Although the Ninth Circuit had previously applied Price Waterhouse in the context of sexual harassment cases, it refused to extend the case’s application to the context of an employer’s appearance standards for employees. Overall, the Ninth Circuit, citing to its past decisions, decided the Jespersen case in a fashion that requires an employee who has been adversely affected by an employer’s appearance standard to produce tangible evidence of an undue burden on her gender. Furthermore, this economic-centered approach frowns upon the use of sex stereotypes to prove a violation of Title VII. The question now becomes: Did the panel of judges on the Ninth Circuit decide this case correctly and produce an appropriate precedent for subsequent similar cases? This Note considers whether courts should be more liberal in their application of Title VII in the context of employer standards that require employees to conform to a certain mode of appearance on the job, especially when the appearance is rooted in gender stereotypes. Reviewing the sparse history of Title VII’s gender provisions and the development of Title VII jurisprudence, this Note examines how courts have created the roadmap for how to apply the very broad and sweeping statute when it comes to employer appearance standards. This Note also considers that the Ninth Circuit has been particularly active in the jurisprudence regarding employer appearance standards, adhering to an unequal burden analysis in reviewing these standards. This Note concludes that the Ninth Circuit’s decision in Jespersen was based on an outdated unequal burden test that fails to adequately consider the full ramifications of policies like Harrah’s. Employer appearance policies based on gender stereotypes, such as one that presumes women should wear makeup, should be evaluated under a more modern policy that recognizes the inherent discrimination in the stereotypes and addresses them directly. As a result of the Jespersen case, however, the law in the Ninth Circuit remains in a stagnant position.

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