Devon W. Carbado, G. Mitu Gulati & Gowri Ramachandran
This is a story about gender, makeup and the law. Darlene Jespersen, a bartender, was fired from her job of fifteen years at Harrah's Casino because she refused to wear makeup. Jespersen responded with a lawsuit that traveled to the Ninth Circuit, where she was represented by LAMBDA Legal, the preeminent gay rights litigation organization. Makeup, some will argue, is a trivial thing. Why would Darlene Jespersen (choose to) lose her job over makeup? More generally, how did favoring (as opposed to prohibiting) a practice that so many women (but not men) engage in become the basis for a sex discrimination suit? Why was LAMBDA involved? What is at stake? Isn't makeup a vehicle for women to express their autonomy and individuality? Finally, do we really want the federal government involved in policing employers' makeup policies? Because anti-discrimination law has been wedded to a biological conception of sex, it has not grappled well with sex discrimination cases that implicate makeup and grooming. This is particularly problematic in today's labor market because few contemporary employers are likely to exclude all women from their workplace; they are far more likely to engage in intra-gender screening based on whether a woman's self presentation is in accord with social scripts about gender normative behavior. Using Jespersen as a point of departure, we reveal how makeup is implicated in this screening process and explain why its regulation ought to be conceptualized as a form of discrimination on the basis of sex.