Makeup discrimination case continues to fascinate

Donald at All Deliberate Speed links to an audio file of the oral argument in Jesperson v. Harrah’s, the casino bartender mandatory makeup rule case, about which we’ve blogged here and here.

I was trying to hustle onward with my HR/Employment Blogosphere update last weekend and not be distracted with listening to this argument (an hour long), but the audio is pretty darn interesting, so I ended up listening to it all and staying up way too late.

A few observations. . .

The plaintiff argued the standard must be proof of bfoq –- that makeup was a bona fide occupational qualification –- a near-impossible burden.

Delightful to actually hear Judge Kozinski, with his distinguished European accent, asking whether an employer can require a swim teacher to wear a swimsuit covering the breasts, but allow a man to leave his chest uncovered –- or whether this is merely sex-discriminatory “societal prejudice.”

Also good questioning comparing the burden of makeup on women to the burden on men of shaving (did I mention that daily shaving is so inconsistent with my sense of self that it would prevent me from properly performing my duties and therefore a no-beard rule would discriminate against me?)

Great to hear all the laughter in the courtroom. Kozinski in particular got lots of laughs. A good time was had by all . . . sort of.

Argument also touched on male cross-dressing and the Plaintiff’s desire to be “androgynous” (all too briefly). And comparison between casino saying makeup is required for women to be “professional” in appearance and law firm saying suit and tie for male attorneys is required to be “professional” in appearance. What is the difference? Is the latter a bfoq because judges expect it? What if casino patrons expect makeup on female employees?

Kozinski: how do you tell “social norms” from “gender stereotypes”? What a question. Followed by a deft response.

Later, on rebuttal I think, Plaintiff’s attorney says employer can regulate color and nature of makeup –- if woman chooses to wear it (e.g., no black lipstick). Now there’s a meaningful distinction that will create clarity in the law.

Question near end of rebuttal: How does employer prevent a man from showing up at work in a skirt? Answer from Plaintiff’s attorney: That employee needs to show how his professional status is negatively affected by being required to wear pants. It has to adversely affect him enough to have an actionable claim.

Dangerous answer for her position, I think. Next she had to go back into how plaintiff’s work as a bartender was impaired by wearing makeup. Says drunks wouldn’t take her seriously if she couldn’t be “one of the guys,” but has to be pretty and feminine. So is lack of makeup a bfoq for the bartender job ? (my question, not the court’s).

I agree with Donald that the case was “well-argued by both sides.” And I’ll add that it was well-discussed and probed by a highly intelligent and active court with a fine sense of humor.

My prediction? The judges questioned both sides equally hard, but by the end, the plaintiff’s attorney had painted herself into a corner. Rebuttal hurt her much more than it helped.

Both male and female judges seem to be looking for a rule that tolerates some common sense everyday societal standards — like women’s bathing suits have tops and men don’t wear makeup or skirts. Plaintiff hasn’t given them a good basis for distinguishing those situations. At the end, they seemed concerned that the plaintiff’s dislike of makeup was entirely subjective, so it could not give rise to any kind of objective rule for such cases.

The judges were quite skeptical –- rightly so — about the claimed adverse effect on the plaintiff’s ability to work.

So I’d bet on Harrah’s winning –- the house always wins, right?

Finally, here’s a discussion of another appearance-requirement-as-sex-discrimination case, involving a makeup company, L’Oreal U.S.A., Inc.

(makeup pix by bernardo.borghetti and mygigi via flickr)