The appearance policy dispute
Darlene Jespersen worked as a bartender at Harrah’s Reno for twenty-one years. Harrah’s adopted a grooming program that required female beverage servers to wear makeup while prohibiting male beverage servers from doing so. Jespersen refused to comply with the makeup requirement and was terminated.
The legal theory was not that an employer can never regulate workplace appearance. The theory was narrower: when an employer makes women conform to a particular feminine presentation as a condition of keeping the job, the rule can cross from a grooming standard into sex stereotyping under Title VII.
The Price Waterhouse theory
Price Waterhouse v. Hopkins held that Title VII reaches employment decisions shaped by sex stereotypes. In that case, the relevant stereotype concerned how a woman in a professional setting was expected to speak, dress, and behave. Jespersen presented the same doctrinal question in the appearance-policy context: whether a required feminine presentation can become an employment condition.
Mr. McKenna advanced the sex-stereotyping theory from the District of Nevada through the Ninth Circuit. Lambda Legal later joined as co-counsel for the appellate phase, but the record and theory were carried forward from the original litigation posture.
- Price Waterhouse v. Hopkins ↗United States Supreme Court decision applying Title VII to employment decisions shaped by sex stereotypes.
Why en banc review mattered
The three-judge Ninth Circuit panel affirmed summary judgment for Harrah’s. En banc review required persuading the court that the case presented a circuit-level question about appearance and grooming standards under evolving Title VII doctrine.
The full eleven-judge court heard the case en banc and ruled 7-4 against Jespersen. The majority rejected the record presented on the unequal-burden theory but did not foreclose future challenges to appearance policies on a different record. That posture is part of why the opinion remains useful to practitioners: it is a loss with doctrinal openings, not a blanket endorsement of sex-differentiated appearance rules.
The dissent and the continuing authority signal
Four judges dissented. The dissent treated the makeup requirement as an employment condition that required women to conform to a feminine stereotype. That was the theory Mr. McKenna had advanced throughout the litigation.
For a lawyer evaluating trial counsel or appellate counsel, the authority signal is not limited to whether the client ultimately prevailed. Jespersen shows the ability to frame a record, preserve a theory, obtain en banc review, and move a contested argument into a federal appellate dissent that later employment-law discussions continue to cite.
- Jespersen v. Harrah’s, 444 F.3d 1104 ↗Ninth Circuit en banc opinion in the appearance-policy Title VII appeal.
What this case says about trial-counsel fit
Jespersen is useful for lawyer-to-lawyer evaluation because it sits at the intersection of trial-court record development and appellate preservation. The question was not just whether an argument sounded right in the abstract. The question was whether it could survive summary judgment, panel review, a rehearing petition, and en banc scrutiny.
That is the kind of engagement where an experienced Nevada trial lawyer can matter before trial begins. The record has to be built for the forum that may eventually decide the controlling question. In a complex employment, civil-rights, or commercial dispute, early trial-counsel involvement can change what gets preserved, what gets emphasized, and what remains available if the case moves beyond the trial court.