The 9th U.S. Circuit Court of Appeals explored the cost of women's bathing suits and whether men can be comfortable wearing mascara during lively en banc arguments Wednesday over a Harrah's casino bartender fired for refusing to wear makeup.
Judge Alex Kozinski brought up the bathing suits as a hypothetical.
"What if you employed swim [instructors] and you required they wear bathing suits?" Kozinski asked Lambda Legal's Jennifer Pizer, who represents plaintiff Darlene Jespersen.
Highlighting a possible "burden," Kozinski said women have to wear different garments than men in order to cover their breasts. Plus, he said, "I think it's probably true that women's bathing suits are more expensive."
Pizer said that was an excellent example of what constituted a "reasonable business necessity," which she argues Harrah's does not have.
The arguement was before an 11-judge en banc panel, following a split decision of a three-judge panel in favor of Harrah's in December. Details of the lively argument are here from The Recorder via Law.com.