By Ann Rostow – Special Contributor

Federal appellate court says casino can force women to wear makeup

When an employer institutes a dress code for both men and women, is that sex discrimination? Most people, and most courts, would say not necessarily.
But what if the men were told to look clean and neat, while the women were ordered to wear low cut tops and dye their hair blue? Now that’s a different story.

In a closely watched case out of the U.S. Court of Appeals for the Ninth Circuit, the situation was not so clear cut. The Harrah’s casino operating company insisted that both male and female bartenders look professional, wear black pants and sensible shoes, keep their fingernails clean and avoid garish jewelry. However, the women had the additional duty of wearing their hair styled and showing up to work in full makeup, complete with powder, mascara, lipstick and blush.

The policy triggered a lawsuit from one woman who never wore makeup in her life and was not about to start. Darlene Jespersen said she felt “degraded” and “demeaned” by the forced face paint, which “took away [her] credibility as an individual and as a person.”

Jespersen, being represented by lawyers with the Lambda Legal Defense and Education Fund, lost repeatedly, and indeed, she has lost once again. On April 13, the full Ninth Circuit court said the 20-year veteran bartender had not proved that the dress code weighed more heavily on women than men.

The fact that it took more time to put on makeup was incidental, and did not rise to the level of sex discrimination under Title VII of the Civil Rights Act, the federal law that governs workplace bias. Nor, in the majority’s view, was there any evidence that Harrah’s was deliberately trying to burden women, or hold them to anachronistic sexual stereotypes.

In two separate dissents, four members of the 11-judge panel argued that the court can’t simplify the policy into a general grooming code for men and women. Instead, the court must examine the makeup requirement on its own merits or lack thereof.

Regardless of the symmetrical rules on black pants and clean nails, Harrah’s went over the line by creating what the dissenters called a “facial uniform” for women that was not required for men and that amounted to nothing less than sex stereotyping. Three of the judges went further, insisting that the effort and expense of applying the makeup every day created a logistical hardship for female employees that constituted sex discrimination on that basis alone.

Harrah’s has since informally abandoned the rules, perhaps inspired by the lengthy litigation that began nearly five years ago. But the casino’s victory sends an arguably confusing message to women in the workplace and to their employers.

Seventeen years ago, the U.S. Supreme Court ruled that women cannot be subjected to sexual stereotyping that rewards female employees for flaunting their feminine wiles and penalizes others for acting too masculine. Just six years ago, the Ninth Circuit ruled that United Airlines violated Title VII by requiring women to meet the weight standards of a medium frame, while letting men pack on the pounds that suited a large frame.

Yet, as Lambda argued, the very idea of makeup is an inherently feminine fashion. Requiring women to sport the full gamut from blush to gloss creates an ultra feminine workforce, where personal style is subsumed into a corporate preference for a classic sexual stereotype. As such, Darlene Jespersen’s claim should logically have been governed by these precedents and others like them, Lambda said.

“The main question in this case,” said Jennifer Pizer, senior counsel with Lambda Legal, “involved the relationship between stereotype and convention.”
Not all conventions are gender stereotypes, Pizer said. But in Jespersen’s situation, the distinction seemed clear.

“You don’t need to have a degree in gender theory to know that people feel very strongly that women should wear makeup and men should not wear makeup, because well, that’s what women do. And you won’t look right. You won’t look like a woman. You won’t look like a real woman, and that’s what stereotypes are.”
The legal test that seemed reasonable to Pizer, who argued the case at the appellate level, is that a plaintiff needs to show that a particular rule is gender based and imposes a sufficient burden on the employee to be actionable.

“You don’t get to sue based on anything that gets on your nerves in some way. You don’t get to sue about every little thing that irks you. It has to be serious enough to rise to a level of discrimination,” Pizer said. “You can have different treatment, but it isn’t discrimination unless it rises to the level that interferes with your workplace experience.”

Ironically, the majority agreed with many of Lambda’s main points, and in what Pizer called a “silver lining” in the defeat, actually moved the law on sex stereotyping further along. But they did so at Jespersen’s expense, ruling that the plaintiff had not offered clear proof that her experience rose to the level of discrimination described in Lambda’s test.

What the court did say, however, was that appearance codes could theoretically violate Title VII, even when both men and women are equally encumbered by their own gender-specific requirements.

That was a step forward in legal thinking about the issue, but at the same time, the court seemed reluctant to open the door to lawsuits from anyone and everyone who objected to a gender based dress code.

The limiting principle they established, said Pizer, was a test of objective corroboration. In other words, hard evidence from a plaintiff that the regulations made his or her job untenable. Unfortunately for her, Jespersen lost on that principle. But odds are a plaintiff in her exact situation might fare better in the future if they introduce expert evidence concerning the cost of cosmetics, the skill they take to apply, and the role of makeup as a marker for extreme femininity.

Lambda has not decided whether to appeal the decision to the U.S. Supreme Court.

This article appeared in the Dallas Voice print edition, April 21, 2006.управление системой продвижения