Court allows casino to apply makeup rule in face of sex discrimination challenge
The possibility that certain mainstream grooming requirements may be viewed as sex discrimination has always been interesting to contemplate.
For example, is it sex discrimination to require short hair for men, but not women; allow earrings for women, but not men, etc.?
Now in this recent Ninth Circuit case the issue is whether it is sex discrimination to require makeup for women (and prohibit it for men).
The case upholding the rule — and the termination of a woman for refusal to wear makeup — is:
Jespersen v. Harrah’s Operating Company Inc., No. 03-15045 (Dec. 28).
A couple of good summaries:
ABA e-Journal: “Court Won’t Wash Off Makeup Rule: Casino’s Requirement Not Sex Discrimination, 9th Circuit Says” (by Richard Acello)
The Recorder (via law.com): “9th Circuit: Employer Can Force Women to Wear Makeup” (by Justin M. Norton)
And here’s the news release from the Lambda Foundation, which represented the losing plaintiff:“Lambda Legal ‘Surprised and Deeply Disappointed’ by Federal Appeals Court Ruling on Sex Stereotypes”
Now the facts:
The plaintiff was a bartender at Harrah’s Casino for nearly 20 years. She was an outstanding employee whose attitude was “very positive,” and she made a “positive impression” on customers. Throughout the 1980s and ’90s Harrah’s encouraged, but did not require, female beverage servers to wear makeup.
The plaintiff said she tried wearing makeup for a short period of time in the 1980s, but found it “made her feel sick, degraded, exposed, and violated.” She “felt that wearing makeup ‘forced her to be feminine’ and to become ‘dolled up’ like a sexual object, and that wearing makeup actually interfered with her ability to be an effective bartender (which sometimes required her to deal with unruly, intoxicated guests) because it ‘took away [her] credibility as an individual and as a person.’”
After a few weeks, she said, she “stopped wearing makeup because it was so harmful to her dignity and her effectiveness behind the bar that she could no longer do her job.” Harrah’s did not object at the time.
OK, hold it right here. It simply does not pay to exaggerate the facts in this overly dramatic way. The legal issue for decision would be the same if she just said she didn’t care to wear makeup, thank you very much.
I mean I could just as well whine about how degraded it made me feel to have to wear a suit and tie in the pre-business casual days, actually interfering with my ability to breathe freely, making me sweat like a pig, depriving me of individuality, and at times leaving me feeling like a nameless, faceless suit rather than a person, ultimately rendering me unable to perform my job. (But then maybe my collar was just too small ;-) )
And what about the millions of women who perform all kinds of work with dignity and effectiveness while wearing makeup?
The trouble began when Harrah’s implemented new mandatory appearance standards:
All Beverage Service Personnel, in addition to being friendly, polite, courteous and responsive to our customer’s needs, . . . must be well groomed, appealing to the eye, be firm and body toned, and be comfortable with maintaining this look while wearing the specified uniform. Additional factors to be considered include, but are not limited to, hair styles, overall body contour, and degree of comfort the employee projects while wearing the uniform.
***
Beverage Bartenders and Barbacks will adhere to these additional
guidelines: . . .Males:
• Hair must not extend below top of shirt collar. Ponytails are prohibited.
• Hands and fingernails must be clean and nails neatly trimmed at all times. No colored polish is permitted.
• Eye and facial makeup is not permitted. . .Females:
• Hair must be teased, curled, or styled every day you work. Hair must be worn down at all times, no exceptions.
• Stockings are to be of nude or natural color consistent with employee’s skin tone. No runs.
• Nail polish can be clear, white, pink or red color only. No exotic nail art or length. . .
These standards were then amended to require all female beverage servers to wear makeup, defined as “foundation/concealer and/or face powder, as well as blush and mascara . . . worn and applied neatly in complimentary colors,” as well as lip color.
The court’s analysis starts with the language of Title VII:
“It shall be an unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s . . . sex.”
The court jumps from this recitation of the statutory language right to whether the Harrah’s standards “are discriminatory; whether they are ‘based on a policy which on its face applies less favorably to one gender . . . ,’” without first addressing whether a makeup policy even falls within the statutory language as involving “compensation, terms, conditions, or privileges of employment.”
I believe that in upholding the employer’s rule the court reached the right, common sense result, but with a weak rationale. There are retaliation, harassment, and other discrimination cases in which the courts have developed kind of a de minimus standard for discrimination: not every slight or hurt rises to the level of “compensation, terms, conditions, or privileges of employment.” That’s why harassment must be severe or pervasive. And why hurt feelings from people looking sideways at you don’t qualify as retaliation.
I’d say the requirement to conform to general socially accepted dress and appearance standards does not rise to the level of statutorily prohibited discrimination, though it is discrimination because of sex in that different standards apply to men and women. It’s de minimus.
Yes, the plaintiff in the Harrah’s case was terminated, which obviously does bring this case within the statutory language. But I’d say she was terminated for refusal to conform to a lawful policy not involving discrimination in “compensation, terms, conditions, or privileges of employment,” rather than because of her sex per se.
Instead, the Ninth Circuit engages in not-fully-convincing mental gymnastics to dodge the simple fact that different standards are applied for one reason only: gender.
The court applies the principles that: 1) grooming and dress standards regulate “mutable” characteristics such as hair length, so employers that make compliance with such standards a condition of employment discriminate on the basis of appearance, not sex; and 2) imposing more stringent appearance standards on one sex than the other constitutes sex discrimination.
It’s a kind of “separate but equal,” I guess. The court accepts different standards, as long as they are not “more stringent.”
A sidelight: the first principle comes from a 70’s-hippie-era case in which men prohibited from long hair were the disadvantaged gender; the second comes from a case in which women were disadvantaged, by more stringent weight requirements for flight attendant positions.
So here’s what an impractical and litigation-encouraging standard the court is left with:
In order to evaluate the relative burdens the “Personal Best” policy imposes, we must assess the actual impact that it has on both male and female employees. In doing so we must weigh the cost and time necessary for employees of each sex to comply with the policy.
So must the court hear evidence comparing the time and cost involved in more frequent male haircuts and nail trimming to that involved in female hairdos, nail polish, and makeup? Isn’t it obvious the impact is unequal? Not to this court:
Jespersen contends that the makeup requirement imposes “innumerable” tangible burdens on women that men do not share because cosmetics can cost hundreds of dollars per year and putting on makeup requires a significant investment in time.There is, however, no evidence in the record in support of this contention. Jespersen cites to academic literature discussing the cost and time burdens of cosmetics generally, but she presents no evidence as to the cost or time burdens that must be borne by female bartenders in order to comply with the makeup requirement.
Even if we were to take judicial notice of the fact that the application of makeup requires some expenditure of time and money, Jespersen would still have the burden of producing some evidence that the burdens associated with the makeup requirement are greater than the burdens the “Personal Best” policy imposes on male bartenders, and exceed whatever “burden” is associated with ordinary good-grooming standards.
Because there is no evidence in the record from which we can assess the burdens that the “Personal Best” policy imposes on male bartenders either, Jespersen’s claim fails for that reason alone.
Next the court had to dodge a Supreme Court case seemingly on point: Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).
In Price Waterhouse, evidence that the plaintiff was told that “in order to improve her chances for partnership . . . [she] should ‘walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry’” was deemed discriminatory sex stereotyping. Justice O’Connor’s concurrence said: “we are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group.”
So didn’t the Supreme Court tell us insisting that female employees wear makeup was discriminatory stereotyping? Here’s what the 9th Circuit says:
Although Price Waterhouse held that Title VII bans discrimination against an employee on the basis of that employee’s failure to dress and behave according to the stereotype corresponding with her gender, it did not address the specific question of whether an employer can impose sex differentiated appearance and grooming standards on its male and female employees.
Huh? Is that a “distinction without a difference” or what?
Nor have our subsequent cases invalidated the “unequal burdens” test as a means of assessing whether sex-differentiated appearance standards discriminate on the basis of sex. Although the precise issue was not before us, we declined to apply Price Waterhouse to grooming and appearance standards cases when we rendered our decision in Nichols, 256 F.3d at 875 n.7 (“Our decision does not imply that there is any violation of Title VII occasioned by reasonable regulations that require male and female employees to conform to different dress and grooming standards.”).And while a plurality of judges in Rene endorsed an independent claim for gender-stereotyping sexual harassment, such a claim is distinct from the claim Jespersen advances here. She has presented no evidence that she or any other employee has been sexually harassed as a result of the “Personal Best” policy.
In short, although we have applied the reasoning of Price Waterhouse to sexual harassment cases, we have not done so in the context of appearance and grooming standards cases, and we decline to do so here. . .
Finally, we note that we are, in any event, bound to follow our en banc decision in Frank, in which we adopted the unequal burdens test.
Why is the usually pro-employee 9th Circuit taking such a hard, conservative line here?
I have an idea.
It’s not really about whether women can be required to dress like women, but whether men can be prohibited from dressing like women!
This Circuit does sit in California, after all, where one might expect litigation by transvestites and transsexuals claiming sex discrimination in being required to dress their physical gender and use the corresponding rest room, etc.
Understandably, these judges would rather not go there. Just my speculation, of course.
