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Makeup Requirements for Female Employees Violate Anti-Discrimination Law:
Why A Federal Appeals Court Erred in Ruling to the Contrary


Tuesday, Jan. 11, 2005

Recently, in Jespersen v. Harrah's Operating Company, the U.S. Court of Appeals for the Ninth Circuit held that an employer may legally terminate a female employee for her failure to wear makeup. According to the court, an employer's imposition of makeup requirements on female workers does not fun afoul of federal anti-discrimination law. The court made a serious mistake in ruling as it did.

The Facts of the Case: 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 defendant's casino. Jespersen received consistently outstanding work evaluations from supervisors and customers alike, who found her highly effective and excellent.

In February 2000, Harrah's instituted a set of mandatory "appearance standards" for employees in guest services, including bartenders, and the standards were soon modified to require that women wear makeup.

The amended policy specifically stated that "[m]ake up (foundation/concealer and/or face powder, as well as blush and mascara) must be worn and applied neatly in complimentary colors," and that "[l]ip color must be worn at all times." In addition, women had to have their hair "teased, curled, or styled every day," in addition to wearing stockings and nail polish.

In contrast, under the men's appearance rules, male service employees were, among other things, prohibited from wearing makeup and nail color. Men also had to keep 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 employees to wear 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 be feminine" and "dolled up" like a sexual object.

More importantly, 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 effect.

In the summer of 2000, Harrah's terminated Jespersen for her refusal to wear makeup.

The Ruling: Why the Court Rejected Jespersen's Sex Discrimination Claims

Jespersen argued sex discrimination on two separate grounds. First, she said, the requirement that women wear makeup creates a burdensome expense that only women, and not men, must absorb. 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 simply asserted, in part based on prior circuit precedents, that imposing different appearance standards for men than for women does not illegally discriminate on the basis of sex.

As long as there is no harassment against the person who fails to conform to a sexual stereotype, said the court, and as long as the distinction between what is required of men and what is required of women does not disproportionately burden either sex, the different appearance requirements are acceptable.

Contrary to the Court's Ruling, Women Plainly Paid More Under the Policy

As Judge 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 short nails) would be less expensive than compliance with the female grooming standards (including hair, makeup, and nail polish requirements), even in the absence of specific evidence offered on the expense difference among Harrah's particular employees.

In a future action, of course, a plaintiff could gather and introduce affidavits demonstrating the unequal financial burden of being a female employee at Harrah's. As a matter of precedent, then, the far more important error in the Ninth Circuit's majority opinion is probably the decision to reject the plaintiff's stereotyping claim.

The Significant Burden of Stereotyping

Let us more closely examine the distinction between the financial expense of makeup and the stereotyping burden alleged by the plaintiff.

Imagine that instead of requiring women to wear makeup and men to refrain from wearing makeup, Harrah's had required men to wear a gold bracelet with the word "Harrah's" on their right 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 treatment on the basis of sex, and the requirement would impose a greater financial burden on women, because platinum is a more expensive metal than gold. Therefore, in that case, the women of Harrah's could sue their employer under Title VII - the main federal statute prohibiting discrimination in conditions of employment.

Nothing about the distinction between gold and platinum, however, would lend Harrah's imprimatur to outdated and offensive traditional gender role assignments.

Imagine, now, that Harrah's required each service employee to wear a sign, provided by the management, that included the server's name. For men, the sign would read: "I am [name], your gentleman server for the evening." For women, the sign would say, "I am [name], your sex object for the evening."

This gender-based requirement would not demand any financial outlay by employees, because Harrah's itself would provide the signs. Nonetheless, any court would likely find that Harrah's in this example 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 not to men.

Why Forcing Women to Wear Makeup As a Job Requirement Is Subordinating

The reader might object here that few women would voluntarily wear a sign calling herself a customer's "sex object," whereas millions of women voluntarily wear makeup to work every day. Upon closer scrutiny, however, the distinction is largely illusory.

Women who voluntarily wear makeup to work are, of course, distinct from women who wear the hypothetical sign. Different women wear makeup for different reasons. Some want to hide what they view as facial flaws, others to accentuate what they see as attractive attributes. Still others want to look pretty to men (or to other women) at the office. And yet others find that makeup relieves the monotony of their daily routine (in the way that colorful ties might perhaps do for men).

The important thing, however, is that women who choose to wear makeup could decide to stop or to wear more or less makeup, depending on their goals. The Harrah's rules, by contrast, specified that women had to wear makeup, regardless of their own preferences, and that the makeup had to include lip color, blush, concealer/foundation or face powder, and mascara.

Because women do not all look alike, the presumption that they all should be wearing each of these kinds of makeup carries with it the implication that there is a particular way that women -- all women -- are supposed to look, especially when coupled with the prohibition against men wearing any makeup. For women who do not want to look "feminine," or conform to the view of women as 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 that one must wear can also communicate a message of ineffectuality and lack of seriousness that may be as destructive to the self-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 once required in the service professions.

The Dissent's Discussion of Supreme Court Precedent Is Persuasive

To challenge the Court's view that Harrah's did not discriminate against Jespersen, the dissenting opinion cites the leading Supreme Court case of Price Waterhouse v. Hopkins.

In Price Waterhouse, the plaintiff was denied partnership at the accounting firm where she had been working. The evidence indicated that the basis for that denial was the view that the candidate was too "macho" and not sufficiently feminine - that is, she did not wear makeup, have her hair styled, and wear jewelry, as Harrah's explicitly mandated for its female employees. The U.S. Supreme Court found that the plaintiff had made out a valid claim of sex discrimination, even though she was not denied partnership on the basis of her being female itself but rather, her failure to conform to sex-role stereotypes.

To defend its decision denying Jespersen a cause of action, the appeals court attempted to distinguish Price Waterhouse, saying that the Ninth Circuit had only applied that ruling to cases of sexual harassment and that there was no evidence of harassment in Jespersen. But this argument makes no sense.

The U.S. Supreme Court, and not the Ninth Circuit, gets to define the relevance of stereotyping to a Title VII claim, and nothing about 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 not a sexual harassment case.

As the dissenting opinion suggests, one unfortunate effect of this unprincipled decision will be to allow employers in blue-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 power difference between employer and employee may be that much greater in the service industries, this decision takes the law of Title VII in exactly the wrong direction. Hopefully, the Ninth Circuit itself (perhaps in en banc review) or the U.S. Supreme Court will see fit to revisit this ill-considered judgment.

Sherry F. Colb, a FindLaw columnist, is Professor and Frederick B. Lacey Scholar at Rutgers Law School in Newark. Her earlier columns, including those covering topics in sex discrimination as well as criminal law and procedure, may be found in the archive of her work on this site.

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