Jespersen filed suit against Harrah's alleging that the makeup requirement for female beverage servers constituted disparate treatment sex discrimination.
Aside from cutting their fingernails and keeping their hair short, the only "stringent" requirement for male beverage servers was that they be prohibited from wearing makeup.
The current law is that employers cannot impose a greater burden on one sex than the other when it comes to appearance standards.
Jespersen contended that the makeup requirement imposes “innumerable” tangible burdens on women that men do not share because cosmetics can cost hundreds of dollars per year and putting on makeup requires a significant investment in time.
The court held that there was no evidence to support the contention and refused to allow the case to go to a jury under a theory that a jury could apply simple common sense without specific supporting evidence.
In May 2005, the court reversed the ruling and ordered the case to be reheard by an 11-judge panel.