Alex Kozinski knows a thing or two about lipstick, mascara and blush, and as far as he's concerned, the bottom line is that he doesn't want to wear it.
"Imagine, for example, a rule that all judges wear face powder, blush, mascara and lipstick while on the bench," the 9th Circuit judge wrote in a Friday dissent.
"I would find such a regime burdensome and demeaning; it would interfere with my job performance," he continued. "I suspect many of my colleagues would feel the same way."
Alas, not enough of them felt that way about bartenders at Harrah's Casino in Reno, Nev., for Kozinski to be in the majority.
In an en banc decision Friday, a seven-judge majority of an 11-judge panel said that a Nevada federal judge was right to dismiss a casino bartender's makeup suit. Jespersen v. Harrah's Operating Company, Inc., 06 C.D.O.S. 3093.
Darlene Jespersen sued Harrah's after she was fired for refusing to comply with an appearance code instituted in 2000 that required women to wear makeup -- despite a 20-year record of exemplary employment at the casino. She argued that the requirement placed an undue burden on women employees and said it cramped her style.
Writing for the majority -- which included three of the four women on the panel -- Chief Judge Mary Schroeder said Jespersen failed to prove that putting on makeup is any more of a hardship for women than a short-hair requirement is for male bartenders.
"We respect Jespersen's resolve to be true to herself and to the image that she wishes to project to the world," Schroeder wrote. "We cannot agree, however, that her objection to the makeup requirement, without more, can give rise to a claim of sex stereotyping under Title VII. If we were to do so, we would come perilously close to holding that every grooming, apparel or appearance requirement that an individual finds personally offensive, or in conflict with his or her own self-image, can create a triable issue of sex discrimination."
The majority opinion upheld a 2004 ruling from a split 9th Circuit panel.
Jennifer Pizer, a lawyer with the Lambda Legal Defense Fund who argued Jespersen's case, said she was disappointed, but the ruling wasn't completely negative.
"I'm heartbroken for Darlene and elated for working men and women across the U.S. Before this case, we didn't know whether the sex stereotyping doctrine applied to dress codes," she said.
"Judge Schroeder, I think, goes to some trouble to be emphatic that the sex stereotyping doctrine applies," she said.
Indeed, the majority opinion did explicitly leave room for future claims.
"We emphasize that we do not preclude, as a matter of law, a claim of sex-stereotyping on the basis of dress or appearance codes," Schroeder wrote. "Others may well be filed, and any bases for such claims refined as law in this area evolves."
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