posted on Wednesday, April 19, 2006 10:05 AM
by
Lou Michels
Making it up about makeup?
That supposed bastion of political correctness and gender equality, the Ninth Circuit, recently issued a fascinating opinion on gender discrimination. The issue relates to one of the fundamental aspects of gender differences -- personal appearance and grooming standards.
Harrah's Casino put an appearance standard in place for its male and female bartenders that, among other things, required women to use makeup and allowed them to have long hair, while men were forbidden to wear makeup and were required to have their hair cut above the collar. A female employee, Darlene Jespersen, challenged the policy on the grounds that it imposed an unequal burden because of her gender, female, and that it violated Title VII by making an employment decision, i.e., requiring makeup, based on a gender stereotype. She lost at the district court level and on appeal, and again, in this latest opinion from the entire Ninth Circuit.
Jespersen objected because she did not wear makeup on or off the job and believed that it would make her uncomfortable by conflicting with her "self-image." This "self-image" conflict was apparently significant enough that it interfered with her ability to perform as a bartender.
The court dealt with the unequal burden argument by noting that a sex-based difference in appearance standards alone, with no showing of disparate effects, does not create a prima facie case of discrimination. Jespersen asked the court to take judicial notice that it costs more money and takes more time for a woman to comply with the makeup requirement than it takes for a man to comply with the requirement that he remain clean shaven and keep his hair short, but the court said, "no."
On a formal level, I suppose this is correct, but nobody with any real world experience believes that putting on foundation, blush, eyeliner, eye shadow and mascara is the temporal equivalent of running a razor over your face. I'm a dedicated fan of TLC's What Not to Wear--the time that consultant Carmindy takes to get the right makeup on makeover prospects is a fairly dramatic indicator of just how much effort goes into putting on a face for work. As the dissent properly noted, even us guys who don't wear makeup "know how long it can take from the hundreds of hours we've spent over the years frantically tapping our toes and pointing to our wrists."
The court gave the sex stereotyping argument a similar short shrift. The court first noted that the appearance policy applied equally to men and women with regard to uniforms and that there was no dress or appearance requirement that was intended to be sexually provocative or stereotyping either gender as sex objects. Instead, the court took a very narrow reading of the famous Price Waterhouse case, noting that the grooming standards that Harrah's imposed did not "objectively impede" Jespersen's ability to perform her job as a bartender. The court noted that allowing Jespersen's claim to go forward based on her personal perception of image would create an almost impossible situation for an employer in that, "every grooming, apparel, or appearance requirement that an individual finds personally offensive, or in conflict with his or her own self-image, can create a triable issue of sex discrimination."
On a common-sense level, the Ninth Circuit's decision is probably correct. This is not a case of extreme appearance requirements, or requirements aimed at exciting the lascivious nature of customers or clientele. On the other hand, anyone who's tried to put on a pair of pantyhose knows darn well that it is not the same as wearing a pair of socks and trousers. I, of course, speak hypothetically here. Personal appearance standards are inexorably tied to gender differences, and as tolerance of a wider variety of appearances expands, the gender-specific nature of some of these standards is going to become more obvious and more of a challenge to enforce.