NCLR and the Transgender Law Center filed an amicus brief with the Ninth Circuit supporting Darlene Jespersen, who was fired by Harrah’s Casino after she refused to comply with a new policy requiring female employees to adopt a hyper-feminine appearance. Harrah’s policy required all women to wear heavy makeup applied in exactly the same way every day, to match a photograph held by the supervisor.

On April 14, 2006, in a 7-4 ruling, an en banc panel of the Ninth Circuit Court of Appeals upheld the validity of the Casino’s grooming policy. The court said that while some sex-differentiated workplace rules may be discriminatory, in this case, the grooming standards did not reinforce negative stereotypes about women and the plaintiff in this case had failed to present evidence that the policy posed greater burdens for women than for men. Two judges filed dissenting opinions. With regard to the sex stereotyping argument, Judge Harry Pregerson disagreed with the majority, stating that the makeup requirement was based on “a cultural assumption – and gender-based stereotype – that women’s faces are incomplete, unattractive, or unprofessional without full makeup.” Judge Alex Kozinski disagreed with the court’s conclusion that there was no evidence of unequal burden, explaining: “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.”

Jespersen is represented by Lambda Legal and Ken McKenna of Reno, Nevada.