Can You Sue An Employer For Making You Wear Makeup
 | Makeup Requirements for Female Employees Violate Anti-Discrimination Law: |
| Tuesday, Jan. eleven, 2005 |
Recently, in Jespersen v. Harrah's Operating Company, the U.Due south. Court of Appeals for the Ninth Excursion held that an employer may legally terminate a female person employee for her failure to habiliment makeup. According to the court, an employer's imposition of makeup requirements on female workers does not fun afoul of federal anti-discrimination constabulary. The courtroom made a serious error in ruling as it did. The Facts of the Example: A Model Employee Who Refused to Wear Makeup Darlene Jespersen, the plaintiff in the case, worked for almost twenty years as a bartender at a sports bar in the accused's casino. Jespersen received consistently outstanding work evaluations from supervisors and customers alike, who found her highly effective and first-class. In February 2000, Harrah's instituted a set of mandatory "appearance standards" for employees in invitee services, including bartenders, and the standards were soon modified to require that women wear makeup. The amended policy specifically stated that "[g]ake upwardly (foundation/concealer and/or confront powder, as well as blush and mascara) must exist worn and applied neatly in complimentary colors," and that "[l]ip color must be worn at all times." In addition, women had to take their hair "teased, curled, or styled every mean solar day," in addition to wearing stockings and smash shine. In dissimilarity, under the men's appearance rules, male service employees were, amidst other things, prohibited from wearing makeup and nail color. Men also had to go on their hair short and their fingernails clean and neatly trimmed. Throughout the 1980's and 1990's, Harrah's had encouraged but not required its female person employees to vesture makeup. Though Jespersen had never liked makeup, she tried for a period to follow the recommendation. She found, however, that wearing makeup made her feel "forced to exist feminine" and "dolled up" like a sexual object. More chiefly, Jespersen felt that makeup interfered with her effectiveness at her job, a position that sometimes required her to manage unruly and intoxicated customers. After a few weeks, Jespersen stopped wearing makeup and ultimately refused to comply with the mandate once it had gone into outcome. In the summer of 2000, Harrah's terminated Jespersen for her refusal to wear makeup. The Ruling: Why the Courtroom Rejected Jespersen'south Sex Discrimination Claims Jespersen argued sex discrimination on two split grounds. First, she said, the requirement that women wear makeup creates a crushing expense that only women, and not men, must blot. Second, she argued, makeup requirements demand conformity with sex-role stereotypes that subordinate women to men. The Ninth Circuit responded to the first ground that there was no evidence produced that would allow a jury to conclude that, taken together, the Harrah's appearance requirements imposed a greater financial burden on women than on men. To the second ground, the court but asserted, in part based on prior circuit precedents, that imposing dissimilar appearance standards for men than for women does not illegally discriminate on the ground of sex. Every bit long as in that location is no harassment confronting the person who fails to conform to a sexual stereotype, said the court, and as long as the distinction betwixt what is required of men and what is required of women does not disproportionately brunt either sex activity, the different appearance requirements are acceptable. Opposite to the Court's Ruling, Women Plainly Paid More Under the Policy As Gauge Thomas's dissent points out, common sense and everyday lay knowledge could allow a jury to conclude that compliance with the neatness standards required of men by Harrah's (including short hair and clean and brusque nails) would be less expensive than compliance with the female grooming standards (including pilus, makeup, and nail polish requirements), even in the absence of specific evidence offered on the expense departure amongst Harrah'due south particular employees. In a future activeness, of class, a plaintiff could gather and innovate affidavits demonstrating the diff fiscal brunt of beingness a female person employee at Harrah's. As a matter of precedent, so, the far more important error in the Ninth Excursion's majority opinion is probably the decision to reject the plaintiff'southward stereotyping merits. The Pregnant Burden of Stereotyping Allow us more closely examine the distinction betwixt the fiscal expense of makeup and the stereotyping brunt declared by the plaintiff. Imagine that instead of requiring women to wear makeup and men to refrain from wearing makeup, Harrah'southward had required men to clothing a golden bracelet with the word "Harrah's" on their correct hands, and had required women to wear a platinum bracelet (of the same size) with the word "Harrah's" on their right hands. This set of rules would represent disparate handling on the basis of sexual activity, and the requirement would impose a greater financial burden on women, because platinum is a more expensive metallic than gold. Therefore, in that case, the women of Harrah'south could sue their employer nether Title VII - the main federal statute prohibiting discrimination in weather condition of employment. Nothing about the distinction between gilt and platinum, however, would lend Harrah'southward imprimatur to outdated and offensive traditional gender role assignments. Imagine, now, that Harrah's required each service employee to wearable a sign, provided by the management, that included the server's proper name. For men, the sign would read: "I am [proper name], your gentleman server for the evening." For women, the sign would say, "I am [name], your sexual practice object for the evening." This gender-based requirement would not demand whatsoever fiscal outlay past employees, considering Harrah's itself would provide the signs. Nonetheless, any courtroom would probable notice that Harrah'due south in this case had discriminated on the basis of sex in setting the conditions of employment, because it had assigned a humiliating title to women on the job, but non to men. Why Forcing Women to Article of clothing Makeup Every bit a Task Requirement Is Subordinating The reader might object here that few women would voluntarily wear a sign calling herself a customer's "sexual practice object," whereas millions of women voluntarily article of clothing makeup to piece of work every day. Upon closer scrutiny, withal, the distinction is largely illusory. Women who voluntarily wear makeup to work are, of course, distinct from women who article of clothing the hypothetical sign. Different women wearable makeup for unlike reasons. Some want to hide what they view as facial flaws, others to accentuate what they see as bonny attributes. Still others want to look pretty to men (or to other women) at the office. And nevertheless others find that makeup relieves the monotony of their daily routine (in the manner that colorful ties might peradventure exercise for men). The important thing, all the same, is that women who choose to clothing makeup could decide to stop or to vesture more or less makeup, depending on their goals. The Harrah'southward rules, by contrast, specified that women had to vesture makeup, regardless of their own preferences, and that the makeup had to include lip color, chroma, concealer/foundation or face powder, and mascara. Because women do not all look akin, the presumption that they all should be wearing each of these kinds of makeup carries with it the implication that there is a particular mode that women -- all women -- are supposed to look, particularly when coupled with the prohibition against men wearing any makeup. For women who do non want to expect "feminine," or conform to the view of women every bit eye candy, such a requirement serves to put them in their place. When one's job includes the need to discipline rowdy and potentially violent male customers who have been drinking, moreover, the painted face up that 1 must article of clothing can also communicate a message of ineffectuality and lack of seriousness that may exist as destructive to the cocky-perception of the person who wears the face as it is to image she projects to her customers. To deny women a choice in the matter permits no escape from the sex object role that was in one case required in the service professions. The Dissent'due south Discussion of Supreme Court Precedent Is Persuasive To challenge the Court's view that Harrah's did non discriminate against Jespersen, the dissenting opinion cites the leading Supreme Courtroom case of Price Waterhouse v. Hopkins. In Price Waterhouse, the plaintiff was denied partnership at the accounting business firm where she had been working. The show indicated that the basis for that deprival was the view that the candidate was also "macho" and not sufficiently feminine - that is, she did not wear makeup, take her hair styled, and habiliment jewelry, as Harrah's explicitly mandated for its female person employees. The U.S. Supreme Court constitute that the plaintiff had made out a valid claim of sex discrimination, even though she was not denied partnership on the ground of her being female itself just rather, her failure to adjust to sexual practice-office stereotypes. To defend its decision denying Jespersen a cause of activeness, the appeals court attempted to distinguish Price Waterhouse, proverb that the 9th Excursion had just practical that ruling to cases of sexual harassment and that in that location was no evidence of harassment in Jespersen. But this argument makes no sense. The U.S. Supreme Courtroom, and not the 9th Circuit, gets to define the relevance of stereotyping to a Title Vii claim, and nothing almost the distinction between termination and sexual harassment bears on the judgment by the highest Court in the land that sex stereotyping is sex discrimination. In fact, Price Waterhouse itself was non a sexual harassment case. Every bit the dissenting opinion suggests, one unfortunate issue of this unprincipled decision will exist to allow employers in bluish-collar service industries to engage in the sort of sex role stereotyping as a condition of employment that has long been prohibited in white collar employment contexts. Because the ability difference between employer and employee may be that much greater in the service industries, this decision takes the police of Title Seven in exactly the incorrect management. Hopefully, the Ninth Excursion itself (perhaps in en banc review) or the U.South. Supreme Court will come across fit to revisit this ill-considered judgment.
Source: https://supreme.findlaw.com/legal-commentary/makeup-requirements-for-female-employees-violate-anti-discrimination-law.html
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