Lively argument in casino makeup case

Yesterday the full Ninth Circuit Court of Appeals heard oral argument in Jesperson v. Harrah’s.

We previously discussed at length the Ninth Circuit panel’s decision in this case holding that the company’s grooming policy requiring female bartenders to wear makeup was not unlawful.

Yesterday’s argument was part of the relatively unusual procedure of en banc (full court) rehearing, which is often a prelude to Supreme Court consideration of an important and challenging case.

Now we’re treated to reports of federal appellate judges quizzing lawyers about topics like the “cost of women’s bathing suits and whether men can be comfortable wearing mascara.”

One judge “revealed that one of his male secretaries used to wear makeup because it made him feel more comfortable,” and then told the packed courtroom, “I wouldn’t be comfortable wearing makeup.”

Then a great hypothetical: whether the employer’s attorney’s law firm could require him to wear makeup in public.

My answer: “Sure, but not if they want me working there.”

Full story from the Recorder (via law.com): “9th Circuit Looks for Answers in Makeup Test” by Jeff Chorney

Perhaps this case is important and challenging.

I’d say it’s most important if it becomes a vehicle for the courts to reiterate strongly that some employer actions are just too trivial to be the stuff of a federal lawsuit, even if discriminatory, because their impact on the conditions of employment are minimal. (See, for example, numerous retaliation cases holding that “snubbing” by coworkers is not an actionable adverse employment action, even if motivated by retaliation, if no loss of wages, demotion, or other more tangible harm results.)

And this case is perhaps most challenging because it’s really not about seeking a remedy for this woman, who turned down an offer to return to work without the makeup requirement. (See “Court Hears Appeal of Bartender Fired for Refusing to Wear Makeup”).

No, my friends, this case is brought to us by the gay/lesbian/transgender litigation lobby, emphasis here on transgender.

As I said before, if an employer can’t require women to wear makeup, this lobby hopes the same reasoning will mean an employer can’t prohibit men from wearing makeup, women’s clothing, etc. (Either way, it’s gender “stereotyping.”)

The court may find a way to hold that the above parallel is inapplicable. If so, perhaps the employer requirement here can be held unlawful, while leaving the door open for an employer’s prohibition of “transgender” appearance in the workplace. Therein lies the challenge.

Unless the court is very careful, that issue will come up again and again. This is a big lobby. Litigation is its chosen method of pushing for social change (some of which I do not personally oppose). This emphasis on litigation is particularly strong because public support is somewhat weak, as recent gay marriage electoral defeats show.

Don’t believe me? Look at the report on this oral argument at 365gay.com: Appeals Court Hears Makeup Case,” by Mary Ellen Peterson: “Harrah’s policy reinforces harmful gender stereotypes that lead to rampant discrimination against our transgender clients on a daily basis,” said Christopher Daley, Director of the Transgender Law Center” (also bringing us the battle against sex-regated public restrooms).

See also AP story (via Washington Post): “Woman Sues Over Casino’s Makeup Policy” by David Kravets.

(photo by dreamtiger via flickr)

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