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to fit stereotypes of women, he was punished for not being “masculine” enough to fit stereotypes of men. In rejecting Dillon’s argument, the court observed that the Hopkins plurality had stressed the Catch-22 in her case: “A desirable trait (aggressiveness) was believed to be peculiar to males. If Hopkins lacked it, she would not be promoted; if she displayed it, it would not be acceptable. In our case, Dillon’s supposed activities or characteristics simply had no relevance to the workplace, and did not place him in a ‘Catch-22.’ ” Dillon was not protected under Hopkins’s Catch-22 theory because his workplace asked him only to be more “masculine.”

The Catch-22 theory focuses on whether individuals can meet the two demands rather than on whether they should have to accede to either. This focus obscures the real problem with the covering and reverse-covering demands. The problem is not that both cannot be met, but that neither (absent a justification) should be made at all. If an employer asks an employee to conform to gender expectations, it should have to back that demand with a reason other than the preservation of sex roles. Here the court mentions that Dillon’s “feminine” affect “simply had no relevance to the workplace.” It’s odd to hear those words accompanying a ruling against Dillon.

Fortunately, the Hopkins plurality offers a second, more expansive theory of liability—a prohibition on sex stereotyping. The plurality notes that “we are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group.” This sex-stereotyping theory prohibits employers from requiring women to behave in “feminine” ways, even if those employers are not also asking women to behave in “masculine” ways. Under this sex-stereotyping theory, women would be protected not just from Catch-22s, but also from reverse-covering demands. This theory would also protect men from being required to behave in “masculine” ways. If the Dillon court had applied this sex-stereotyping theory, the “feminine” man in that case would have prevailed. In a more recent case, an appellate court relied on the sex-stereotyping strand of Hopkins to give a “feminine” man relief.

Even the sex-stereotyping theory, however, is not a silver bullet. In 2004, an appellate court upheld the termination of a female bartender who was fired by a Nevada casino for refusing to wear makeup. Throughout the 1980s and 1990s, Harrah’s Casino encouraged its female beverage servers to wear makeup without requiring them to do so. Darlene Jespersen, who began working at Harrah’s in the 1980s, tried wearing makeup for a short period of time, but found it “made her feel sick, degraded, exposed, and violated.” She stated that it “forced her to be feminine” and made her feel “dolled up” like a “sexual object.” She also believed it diminished her effectiveness as a bartender. The job required her to deal with unruly or intoxicated patrons, and she felt the makeup diminished her “credibility as an individual and as a person.” Even without makeup, she garnered consistently positive reviews for her entire term of employment. Her supervisors observed that she was “highly effective” and “very positive,” and customers praised her service and attitude.

In 2000, Harrah’s implemented a “Personal Best” program, which required beverage service employees to attend sessions with “Personal Best image facilitators” focusing on their physical appearance. The facilitators groomed the employees and took two Personal Best photographs of them. These photographs became an “appearance measurement” benchmark against which the daily appearance of the employees was judged. Under the Personal Best program, female beverage servers were required to have their hair “teased, curled, or styled” and to wear stockings and colored nail polish. Jespersen went through this training and conformed to the required grooming standards.

Later that year, Harrah’s amended its Personal Best standards to require that female beverage servers wear makeup, including