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by Riya Resheidat

Title VII prohibits an employer from firing an employee because of the employee’s sex. Frank v. United Airlines, Inc., established that an employer does not violate Title VII by imposing an appearance requirement that is different but “essentially equal” on male and female employees. Frank v. United Airlines, Inc., 216 F.3d 845, 854 (9th Cir. 2000). The Ninth Circuit reaffirmed the “equal burden” doctrine in 2006 when it applied it to appearance standards for bartenders in Jespersen v. Harrah’s Operating Co., 444 F.3d 1104 (9th Cir. 2006).

The holding in Jespersen is contrary to the plain language of 42 USC § 2000e-2(a)(1), which reads, in relevant part:

It shall be an unlawful employment practice for an employer–

(1) to […] discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s […]sex[.]

Harrah’s, a casino, fired Jespersen, a female bartender, for refusing to wear makeup, which was a violation of the casino’s bartender appearance policy. Jespersen was fired because of her sex, i.e., she would not have been fired if she were a man under identical circumstances. In fact, Harrah’s policy explicitly directed men not to wear makeup. The plain language of Title VII does not allow for sex discrimination as long as the discrimination is different but equal for both sexes, and the courts should not write this exception into § 2000e-2(a)(1).

Even if the equal burden doctrine is applicable, the Ninth Circuit applied it incorrectly. Harrah’s appearance policy did create a greater burden on females than it did on males. Unfortunately, Jespersen’s counsel failed to present evidence that wearing makeup is a financial burden on the female employee. However, while Harrah’s required that men did not have hair grow past the collar and kept their nails clean and trimmed, the female employees were given more restrictive hair requirements and forced to wear “face powder, blush and mascara” and “lip color at all times.” As Judge Kozinski pointed out in his dissent, “You don’t need an expert witness to figure out that such items don’t grow on trees.” Jespersen, 444 F.3d at 1117.

Moreover, the Ninth Circuit’s approval of the appearance standards is contrary to the United State Supreme Court’s holding in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), which held that an employer may be liable under Title VII for discriminating based on a gender stereotype, such as, “women should not be aggressive.”  Requiring women to wear makeup to look their best, while men are only required to keep their hair and nails neat to look their best, is a result of gender stereotyping. The New York Times reported that a 2011 study found that women wearing makeup are perceived to be more attractive and competent, and any barefaced woman who has been asked if she is tired or sick can attest to the fact that people are not accustomed to seeing the female face in its natural form.

Riya Resheidat is an Articles/Comments Editor at the FIU Law Review. Ms. Resheidat can be reached at