Las Vegas casinos exclusively hire women to serve cocktails on the casino floor, dressing them in tight-fitting, sexy, uncomfortable costumes and high heels. The exclusive hiring of women as cocktail servers violates Title VII's prohibition against sex discrimination unless the employer can demonstrate that being a woman is a bona fide occupational qualification ("BFOQ") for the job of cocktail server. Sitting en banc, the Ninth Circuit Court of Appeals recently decided Jespersen v. Harrah's Operating Co., which concluded that sex-differentiated appearance and grooming codes are legal in jobs held by both men and women unless they impose unequal burdens on men and women. The Ninth Circuit, however, also concluded that a plaintiff may attack a dress and grooming code under Price Waterhouse v. Hopkins if the code intentionally stereotypes women because of their sex and the stereotyping objectively interferes with the woman's ability to perform the job. Undoubtedly, the uniforms worn by women cocktail servers intentionally stereotype them because of their sex. After Jespersen, a casino would have to prove, in response to a lawsuit challenging its dress code, that it is a BFOQ for a woman cocktail server to dress in a sexy uniform. Assuming that the courts would conclude that being a woman who dresses in sexy garb is not a BFOQ for the position of cocktail server, Jespersen raises the question of whether the casinos may legally hire both men and women, and dress both in sexy costumes, which in essence, sexually stereotypes both men and women. This article concludes that Jespersen should permit casinos hiring cocktail servers and other similar employers whose jobs include an aspect of performance to require that both men and women wear sexually provocative uniforms to work.
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