In an en banc rehearing, the 9th Circuit upheld a ruling that Harrah's Reno casino can force its female employees to wear makeup. At the core of the decision was whether the purchase and application of makeup requires female employees to spend more time and money than male employees had to spend under the casino's dress code for males. The panel decided the case on April 14.
Darlene Jespersen worked as a bartender for Harrah's. According to casino policy, all female bartenders must wear makeup. When she refused to wear make-up, the casino terminated Jespersen. She filed suit in district court and lost. On appeal, the 9th Circuit denied her claim, holding that she failed to establish that the appearance policy created a larger burden on women than men.
The majority of the en banc panel agreed with the initial appellate ruling that the plaintiff failed to prove the existence of an undue burden.
In their dissent, three judges argued that Harrah's appearance policy created a disparate burden on women. Penning the opinion, Judge Alex Kozinski wrote that whereas many of the appearance requirements had parallels for both genders, the make-up requirement for women did not have a male counterpart. Although he conceded that the plaintiff failed to present evidence of the extra cost the makeup requirement imposed, Judge Kozinski decided to use some common sense and humor.
"Harrah's policy requires women to apply face powder, blush, mascara and lipstick," he wrote. "You don't need an expert witness to figure out that such items don't grow on trees."
Commenting on the time burden makeup application entails, Judge Kozinski wrote, "Even those of us who don't wear makeup know how long it can take from the hundreds of hours we've spent over the years frantically tapping our toes and pointing to our wrists."
As a final jab to his colleagues, Judge Kozinski attempts to put those in the majority in the same black leather shoes Harrah's required Jespersen to wear.
"But those of us not used to wearing makeup would find a requirement that we do so highly intrusive," he wrote. "Imagine, for example, a rule that all judges wear face powder, blush, mascara and lipstick while on the bench. Like Jespersen, I would find such a regime burdensome and demeaning; it would interfere with my job performance. I suspect many of my colleagues would feel the same way."