Makeup, Identity Performance & Discrimination

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Makeup, Identity Performance & Discrimination:

Groundbreaking symposium explores trends in employment discrimination

Oct. 12, 2006

An Oct. 20 symposium at Duke Law School will explore a rapidly developing area of employment law: workplace appearance standards. Structured as a day-long series of roundtable discussions, the symposium will bring together top legal and business experts in such areas as employment discrimination, workplace harassment, sexual orientation, race, and organizational behavior to discuss the apparent conflict between some recent court decisions that have condemned stereotyping in the workplace and others that have upheld appearance requirements, among other issues. 

The symposium had its genesis in the recent Ninth Circuit Court of Appeals ruling in Jespersen v. Harrah’s Operating Co., says Duke Law Professor Catherine Fisk, who is organizing the conference along with Duke Law Professor Mitu Gulati. In that case, a majority of the court upheld Harrah’s decision to fire a long-time, well-liked bartender because she refused to comply with its requirement that female employees wear makeup. While courts have generally found it to be illegal to stereotype when making employment decisions, they have, as in Jespersen, sometimes upheld sex or race-specific grooming requirements, notes Fisk. “In Jespersen, the majority said the requirement that women wear makeup is not based on a stereotype of what is appropriate female behavior.

“What makes the question of appearance requirements foundational to modern thinking about equality is that it’s at the frontier of where we’re prepared to go with respect to social change to advance the goal of equality,” says Fisk. “This symposium is probing what is the relevance of appearance, given how it relates to race, gender, religion, ethnicity, and your sort of particular way of ‘performing your racial or gender identity.’ What’s the relevance of that to the employer’s business model?”

The Duke Journal of Gender Law and Policy is sponsoring the event with the support of Crowell & Moring LLP and McKee Nelson LLP, and will publish an upcoming volume of scholarly papers relating to issues discussed during the symposium.

“Makeup, Identity Performance & Discrimination” will begin at 8:00 a.m. in room 3041, and is free and open to the public. The Law School is located at the corner of Towerview Road and Science Drive on Duke’s West Campus. Practicing attorneys are eligible for six hours of CLE credit for attending the symposium, which is accredited by the State Bars of North Carolina and South Carolina; certificates of attendance will be provided to attorneys for submission to other state bars. Contact The Duke Journal of Gender Law & Policy at (919) 613-7223 for information on CLE credit.

The symposium will webcast live at

Contact: Frances Presma, (919) 613-7248,

Read a Q&A with Professors Fisk and Gulati on the Makeup, Identity Performance & Discrimination symposium.