More than a decade ago, Katharine Bartlett, currently Dean of Duke Law School, authored a foundational article on discrimination based on appearance choices.1 The article made a big splash, provocatively raising the question of whether discrimination claims based on dress and appearance standards are cognizable under Title VII, the federal law that prohibits discrimination on the basis of, among other aspects of identity, race and sex. [...] to a large extent, their reasoning centered on two ideas: (1) that employers have broad latitude to define the professional boundaries of their workplaces and that grooming standards are a reasonable way for them to do precisely that; and (2) that Title VII protects identity characteristics that are immutable (for example, phenotype) or that implicate a fundamental right (for example, marriage). Trivial though the subject of makeup supposedly is, the Jespersen litigation garnered an enormous amount of attention as it wound its way from the district court, to a three-judge panel of the Ninth Circuit, and then to the Ninth Circuit en banc.

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