Initial thoughts on Jespersen v. Harrah’s Casino, Inc. (9th Cir. en banc)

Almost a year after the en banc argument on June 22, 2005, the decision in this Ninth Circuit Title VII sex discrimination case has finally issued, affirming, 7-4, the grant of summary judgment to Harrah's, with dissents from Judge Pregerson, joined by Judges Kozinski, W. Fletcher, and Graber, as well as a very eloquent dissent by Judge Kozinski, joined by Judges W. Fletcher and Graber.

I have written elsewhere about issues relating to this case, here and here.

Harrah's fired Darlene Jespersen, who had worked for the casino in Reno for over 20 years, and was a bartender at a sports bar there. She was fired for her refusal to comply with Harrah's grooming policy, which required women beverage servers to wear a "uniform" of makeup, and forbade men from wearing makeup. The policy required women to wear foundation and/or powder, lipstick, mascara, and blush. After receiving a makeover by image consultants,  photographs of male and female employees were taken, called their "Personal Best" photos, and were used by supervisors as an "appearance measurement tool," so that the employees could be held accountable to looking their "Personal Best," as shown in the photo, on a daily basis.  Lipcolor had to remain on "at all times."

Jespersen sued under Title VII, on two separate theories: 1. the sex differentiated makeup requirement imposes unequal burdens on men and women, and 2. the sex differentiated makeup requirement amoutns to requiring employees to conform to sex stereotypes, which violates Title VII under Price Waterhouse v. Hopkins (a Supreme Court case) and Nichols v. Azteca Restaurant (a Ninth Circuit case).

I love to wear makeup, as well as put makeup on others, so it would really upset me if I were told I couldn't wear makeup to work. But I would also feel incredibly degraded, as Jespersen did, if I were forced to wear it.

Now, to the opinions:

As an initial matter, I think people of all political persuasions can agree the majority en banc's basis for affirmance is far more coherent than the original panel majority’s was.  The original panel opinion tried to limit all Hopkins sex stereotyping claims to sexual harassment cases. (With no articulated principle behind the distinction, and despite the fact that Hopkins itself was not a sexual harassment case.)

So though I disagree with the result, it’s good that the en banc panel opinion rests on a more coherent basis. Instead, the en banc decision explicitly holds that sex differentiated grooming codes can be challenged on the theory that they are the result of sex stereotyping, as well as on the theory that they impose unequal burdens on men and women. However, the majority holds that Jespersen did not raise a triable issue of fact as to whether either of these were the case with respect to the Harrah's grooming code. This is of course incredibly sad for Jespersen, but given the conservative makeup of the en banc panel, I'm relieved that the door is not completely closed on victims of sex discrimination by employers who choose appearance as the medium through which they will put men and women workers in their respective places.

Instead, the case seems to me to represent yet another instance of the evidentiary burdens on Title VII plaintiffs being raised to ridiculous heights. I'm pretty sure we don't need expert witnesses to tell us that a rule that women should wear makeup and men should not stems from a sex stereotype about how men and women should look. (For those interested in how this custom evolved, a short history of the meaning of cosmetics in America is included in this draft, drawing heavily on excellent work done by sociologist Kathy Peiss.) But I especially don’t think we need expert witnesses to tell us that having to wear powder and/or foundation, mascara, blush, and lipstick, with lipcolor remaining on “at all times,” costs a lot of time and money that men who serve drinks at Harrah’s don’t have to spend.

In any case, as it relates to how the law should approach employer dress and grooming codes, I contend elsewhere that it is more often as a worker rights issue than an antidiscrimination law issue. (The two of course go together quite often.) So I love that in his dissent, Judge Kozinski recognizes that part of what’s at issue in this case is worker degradation. He notes that makeup "touches delicate parts of the anatomy," such as the eyes and lips. Nobody likes to be told what to wear, or not wear, on their face, and Harrah’s dictated such personal matters to Jespersen without good reason: Jespersen performed fantastically without makeup, receiving incredibly high reviews from customers, who even wrote that they liked her company as a bartender so much she made them want to come back to the casino and spend money.

As much as I am used to playing around with makeup, I still find it physically uncomfortable, and I know many others do, too. Here is one of my favorite bits of Colette's The Vagabond:

Me.  As that word came into my head, I involuntarily looked in the mirror.  There’s no getting away from it, it really is me there behind that mask of purplish rouge, my eyes ringed with a halo of blue grease-paint beginning to melt.  Can the rest of my face be going to melt also?  What if nothing were to remain from my whole reflection but a streak of dyed colour stuck to the glass like a long, muddy tear?