Employer can force women to wear makeup?

[MMandM]

http://www.law.com/jsp/article.jsp?id=1104154529743

 

In an opinion likely to raise the ire of civil rights and feminist groups, a divided 9th U.S. Circuit Court of Appeals panel ruled that a woman who was fired from her job as a casino bartender for refusing to wear makeup cannot sue for sex discrimination.

 

The 2-1 decision rejected bartender Darlene Jespersen's argument that Harrah's Operating Co. violated her rights when it implemented "Personal Best" image standards requiring women to wear makeup and men to trim their fingernails and keep their hair short.

 

"Even if we were to take judicial notice of the fact that the application of makeup requires some expenditure of time and money, Jespersen would still have the burden of producing some evidence that the burdens associated with the makeup requirement are greater than the burdens the 'Personal Best' policy imposes on male bartenders," Senior Judge A. Wallace Tashima wrote for the majority.

 

Judge Barry Silverman concurred.

 

Judge Sidney Thomas dissented, saying that a jury easily could have found that the makeup requirement illegally requires female employees to conform to sex stereotypes, or that it places more of a burden on women than Harrah's male grooming standards.

 

"Sex-differentiated appearance standards stemming from stereotypes that women are unfit for work, fulfill a different role in the workplace, or are incapable of exercising professional judgment systematically impose a burden on women, converting such stereotypes into stubborn reality," Thomas wrote.

 

Jespersen worked as a sports bartender at Harrah's in Reno, Nev., for nearly two decades and received exemplary performance evaluations. Harrah's encouraged female beverage servers to wear makeup, but it was not required.

 

Jespersen briefly tried wearing makeup but later stopped because she felt it "forced her to be feminine" and to become "dolled up" like a sex object.

 

The company changed its appearance standards in 2000, announcing the goal of a "brand standard of excellence." It required female bartenders to use nail polish and wear their hair down and either "teased, curled or styled." Later the rule was amended to add makeup, which Harrah's defined as "foundation/concealer and/or face powder, as well as blush and mascara," plus lip color.

 

Male bartenders, meanwhile, were required to wear their hair above the collar and keep their nails clean and neatly trimmed. Makeup, ponytails and nail polish were banned for men.

 

Jespersen was terminated in July 2000 after refusing to comply with the makeup requirements. A district court granted summary judgment for Harrah's, ruling that its policy did not impose unequal burdens on the sexes.

 

The 9th Circuit agreed. Tashima wrote that there is "no evidence in the record in support of [Jespersen's] contention" that cosmetics can cost hundreds of dollars per year and that applying them requires a significant investment in time.

 

He further held that Harrah's policy did not run afoul of the 1989 U.S. Supreme Court ruling Price Waterhouse v. Hopkins, 490 U.S. 229, in which a female associate who was perceived as too "macho" successfully challenged her exclusion from an accounting firm's partnership. Tashima wrote that Price Waterhouse "did not address the specific question of whether an employer can impose sex-differentiated appearance and grooming standards on its male and female employees."

 

In his dissent, Thomas said Jespersen should be able to bring her case to a jury, adding that the decision leaves service workers unprotected from discrimination.

 

"The distinction created by the majority opinion leaves men and women in service industries, who are more likely to be subject to policies like the Harrah's 'Personal Best' policy, without the protection that white-collar professionals receive," Thomas said.

 

Jespersen's attorney, Jennifer Pizer of the Lambda Legal Defense and Education Fund in Los Angeles, said the court "erred in a few ways when defining an unequal burden."

 

"There is a burden in makeup costs. And there's the burden of the message that these female employees are subordinate and unacceptable as workers unless they present an ultra-feminine appearance," Pizer said.

 

"Male employees must be clean and neat and look professional and women are deemed unprofessional if they are clean and neat, but don't alter their appearance," she said.

 

Harrah's attorney, Veronica Arechederra Hall of Littler Mendelson's Las Vegas office, referred all questions to Harrah's spokesman Gary Thompson.

 

Thompson said modified appearance standards requiring makeup are still in place at the casino.

 

"We implemented these policies in response to requests from customers accustomed to a level of service and a type of appearance," Thompson said. "This is no different from CBS requiring a female or even a male reporter to wear makeup on television."

 

Jespersen v. Harrah's, 04 C.D.O.S. 11332, attracted numerous amici curiae, including the American Civil Liberties Union, the National Employment Lawyers Association and the American Hotel & Lodging Association, among others.

 

 

 

Agree or disagree? And why? I'll post my opinion later

Edited April 17, 2007 by MarkESQ

[Luc]

My first thought would be that there should not be different requirements for men and women in the workplace. Period. It would seem that to require anything different from one sex or the other would constitute discrimination of some form.

 

But then

[Razor]

If I own a business and you are my employee, you will do exactly as I tell you to do or you will be terminated from your position. That simple. I believe very firmly that a business, as a private entity, has the right to run their business in any way they choose. If the employee doesn't like it, they don't have to work there.

 

The notion of suing someone because they told you that you have to wear makeup when you work at a place where appearance is of utmost importance is, well, stupid.

[NickolasJames8]

Exactly, Razor.....you took the words right off of my monitor There are other places she can go work at

[MMandM]

A private employer does not have a protected liberty interest under the First Amendment nor the Fourteenth Amendment to discriminate in employment decisions against qualified individuals based on race, color, religion, sex, or national origin.

 

Congress passed Title VII of the Civil Rights Act of 1964 which prohibits employment discrimination based on race, color, religion, sex, or national origin.

 

The Ninth Circuit ruled that the plaintiff did not state a claim under Title VII -- that her employer's requirement that female employees wear make up as a condition of employment was NOT sex discrimination in violation of Title VII.

 

But See PRICE WATERHOUSE v. HOPKINS, 490 U.S. 228 (1989).

 

http://caselaw.lp.findlaw.com/scripts/getc...0&invol=228

 

To improve her chances for partnership, Hopkins was advised that she should "walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry."

 

In passing Title VII, Congress made the simple but momentous announcement that sex, race, religion, and national origin are not relevant to the selection, evaluation, or compensation of employees. 3 Yet, the statute does not purport to limit the other qualities and characteristics that employers may take into account in making employment decisions. The converse, therefore, of "for cause" legislation, 4 Title VII eliminates certain bases for distinguishing among employees while otherwise preserving employers' freedom of choice. This balance between employee rights and employer prerogatives turns out to be decisive in the case before us.

 

Congress' intent to forbid employers to take gender into account in making employment decisions appears on the face of the statute. In now-familiar language, the statute forbids [490 U.S. 228, 240] an employer to "fail or refuse to hire or to discharge any individual, or otherwise to discriminate with respect to his compensation, terms, conditions, or privileges of employment," or to "limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's . . . sex." 42 U.S.C. 2000e-2(a)(1), (2) (emphasis added). 5 We take these words to mean that gender must be irrelevant to employment decisions.

 

The critical inquiry, the one commanded by the words of 703(a)(1), is whether gender was a factor in the employment decision at the moment it was made.

 

Our interpretation of the words "because of" also is supported by the fact that Title VII does identify one circumstance in which an employer may take gender into account in making an employment decision, namely, when gender is a "bona fide occupational qualification [(BFOQ)] reasonably necessary to the normal operation of th[e] particular business or enterprise." 42 U.S.C. 2000e-2(e). The only plausible inference to draw from this provision is that, in all other circumstances, a person's gender may not be considered in making decisions that affect her. Indeed, Title VII even forbids employers to make gender an indirect stumbling block to employment opportunities. An employer may not, we have held, condition employment opportunities on the satisfaction of facially neutral tests or qualifications that have a disproportionate, adverse impact on members of protected groups when those tests or qualifications are not required for performance of the job. See Watson v. Fort Worth Bank & Trust, 487 U.S. 977 (1988); Griggs v. Duke Power Co., 401 U.S. 424 (1971). . . .

 

In saying that gender played a motivating part in an employment decision, we mean that, if we asked the employer at the moment of the decision what its reasons were and if we received a truthful response, one of those reasons would be that the applicant or employee was a woman. 13 In the specific context of sex stereotyping, an employer who acts on the basis of a belief that a woman cannot be aggressive, or that she must not be, has acted on the basis of gender.

 

Although the parties do not overtly dispute this last proposition, the placement by Price Waterhouse of "sex stereotyping" in quotation marks throughout its brief seems to us an insinuation either that such stereotyping was not present in this case or that it lacks legal relevance. We reject both possibilities.

 

GENDER is most certainly factor in an employment decision when the employer conditions a female employee's employment on wearing cosmetics -- foundation, blush, mascara, and lip color. The requirement that a woman wear make-up or lose her job is NOT a facially neutral qualification for the job -- and that's where the Ninth Circuit went wrong in its decision. The Ninth Circuit treated this as a "disparate impact" case when it wasn't a disparate impact case. The employer made an employment decision based on GENDER and acted on the basis of a belief that a woman cannot successfully mix, pour, or sell drinks to customers unless she wears make up. This is unlawful sex stereotyping.

Edited April 17, 2007 by MarkESQ

[Drewbie]

Well if you are working in a public work establishedment, I dont wan my employee looking like shit when there working.

[MMandM]

Well if you are working in a public work establishedment, I dont wan my employee looking like shit when there working.

 

The United States Supreme Court said:

 

"We hold that when a plaintiff in a Title VII case proves that her gender played a motivating part in an employment decision, the defendant may avoid a finding of liability only by proving by a preponderance of the evidence that it would have made the same decision even if it had not taken the plaintiff's gender into account."

 

Apply the above stated rule of law (the Supreme Law of the Land) to an employer's decision that all female employees must wear make up or be fired. The employer then fires a woman because she refused to wear make up. Is it possible for an employer to prove he would have made the same decision (to fire the woman) even if it had not taken the plaintiff's gender into account?

[Drewbie]

If I didn't dress a certin way at my job I world of been let go, company it was, wants a presentable look I totally understand, now if she looked good, and not makup then I can see her point, but I would just look for another job, it's not something I would sue over, if a boss acted that way why would you want to work for that person.

[Jack Scribe]

I believe very firmly that a business, as a private entity, has the right to run their business in any way they choose. If the employee doesn't like it, they don't have to work there.

 

I've been in the restaurant business and have been confronted, on a few occasions, by this situation. First, in the employee manual, it should always be stated what grooming standards are expected. With women, a statement such as "appropriate makeup acceptable in a business environment" usually covers this. I always verbally covered this with a new-hire so there was no misunderstanding. This also addresses abuse of eccentric makeup choices.

 

Jack

[shadowgod]

Was she let go for being a woman and not wearing Makeup or was she let go for failing to follow company policies and procedures? I'm sure a male in the same postion who failed to keep his image to set standards would also be fired. Therefore it is not unlawful gender stereotyping.

 

Like it or not she was hired by said company to work with the public. Part of that job is maintianing the companies public image, as obviously requested by the public. her failure to adhear to those standards resulted in a failure to adhear to her job requirements.

 

Nowhere does it state she was to apply makeup in copious ammounts as to appear like a two dollar hooker. Just enough to appear presentable.

[old bob]

Hey MarkESO !

You seem to be a well informed lawyer. :graduated:

May I ask you about another law case ?

I heard about a woman who put her dirty dog in her laundering wash machine and found the poor beast dead. She claimed the constructor of the machine and asked a huge amount for damages, with the argument that the constructor didn

[shadowgod]

Hey MarkESO !

You seem to be a well informed lawyer. :graduated:

May I ask you about another law case ?

I heard about a woman who put her dirty dog in her laundering wash machine and found the poor beast dead. She claimed the constructor of the machine and asked a huge amount for damages, with the argument that the constructor didn

[clumber]

Sounds like the manufacturer should have counter sued her for being stupid.

 

Sounds to me like she had a dog she didn't want and needed some quick cash.

[MMandM]

Hey MarkESO !

You seem to be a well informed lawyer. :graduated:

May I ask you about another law case ?

I heard about a woman who put her dirty dog in her laundering wash machine and found the poor beast dead. She claimed the constructor of the machine and asked a huge amount for damages, with the argument that the constructor didn't mention in the directions for use not to put alive animals in the machine. And apparently she won !

Can you find the references of the case ?

 

I've never heard of that case. Do you know what state? Quite a few stories like this one are legal myths. Even true stories often prove not to be examples of bad law, but bad lawyering.

 

In most states she would have been tried for cruelty to animals.

Edited April 17, 2007 by MarkESQ

[MMandM]

Was she let go for being a woman and not wearing Makeup or was she let go for failing to follow company policies and procedures? I'm sure a male in the same postion who failed to keep his image to set standards would also be fired. Therefore it is not unlawful gender stereotyping.

 

Elysa J. Yanowitz v. L'oreal USA, Inc

 

http://www.morelaw.com/verdicts/case.asp?n...%20&d=23805

 

Plaintiff Elysa Yanowitz was a regional sales manager for defendant L'Oreal USA, Inc. (L'Oreal), a cosmetics and fragrance company. A male L'Oreal executive ordered Yanowitz to fire a female employee in her region because the executive found the employee insufficiently attractive. Yanowitz was asked to get him someone "hot" instead. She asked for a better reason. The executive and another executive, who was Yanowitz's immediate supervisor, subjected her to heightened scrutiny and increasingly hostile evaluations over the ensuing months. Within four months, Yanowitz went on stress leave, and her position was eventually filled.</SPAN>

 

Sex discrimination in the workplace comes in many guises. In a most basic form, it involves outright exclusion of women, solely by reason of their sex. Even where women have gained access to the workplace, sex discrimination may persist in other forms, for example, through identification of particular jobs as "man-only" or "woman-only" jobs, through perpetuation of a glass ceiling that ensures women will only rise so high on the corporate ladder, or through the unwritten establishment of two sets of rules for success: for men, based on performance, and for women, based on appearance.

 

Just as an employer may not impose broad rules that regulate men and women differently based on their appearance or sexual desirability, so an employer may not discriminate against specific individuals on these bases. For example, in Priest v. Rotary (N.D.Cal. 1986) 634 F.Supp. 571, an employer demoted a cocktail waitress who refused to wear sexually suggestive attire. The court recognized this as unlawful sex discrimination. (Id. at p. 581.) Similarly, in E.E.O.C. v. Sage Rlty. Corp. (S.D.N.Y. 1981) 507 F.Supp. 599, the employer insisted that a female office building lobby attendant wear a sexually revealing uniform. When the employee refused, she was dismissed. The court concluded that the employee was required to wear the revealing uniform because she was a woman, and that she had made out a prima facie case of sex discrimination. (Id. at pp. 607-608.)

Edited April 17, 2007 by MarkESQ

[Razor]

GENDER is most certainly factor in an employment decision when the employer conditions a female employee's employment on wearing cosmetics -- foundation, blush, mascara, and lip color. The requirement that a woman wear make-up or lose her job is NOT a facially neutral qualification for the job -- and that's where the Ninth Circuit went wrong in its decision. The Ninth Circuit treated this as a "disparate impact" case when it wasn't a disparate impact case. The employer made an employment decision based on GENDER and acted on the basis of a belief that a woman cannot successfully mix, pour, or sell drinks to customers unless she wears make up. This is unlawful sex stereotyping.

 

 

The casino owner employs people in order to sell products or services, like booze and gambling. Sex sells very well, and a woman who is made up and scantily dressed will sell far more drinks than an eighty year old woman missing an arm. Appearance is of great importance in jobs where people interact with their customers to sell something. That, in my opinion, is NOT sex stereotyping. It is smart business practice based on solid fact.

 

Quite frankly, any woman who works in a profession like this should expect to be required to sell herself to a certain degree. If you don't agree with it, don't enter a business in which you will be put into such a position.

 

Sex stereotyping is telling a woman she isn't smart enough to be a lawyer because she's a woman. It is not asking a woman to fulfill the requirements of an occupation in order to do it with the most possible success.

 

You'll never see an ugly male bartender in a gay bar, will you? Of course not, it would be bad for business. The bartender would flirt, laugh, and draw people in with the intent of selling them more products.

[Drewbie]

The casino owner employs people in order to sell products or services, like booze and gambling. Sex sells very well, and a woman who is made up and scantily dressed will sell far more drinks than an eighty year old woman missing an arm. Appearance is of great importance in jobs where people interact with their customers to sell something. That, in my opinion, is NOT sex stereotyping. It is smart business practice based on solid fact.

 

Quite frankly, any woman who works in a profession like this should expect to be required to sell herself to a certain degree. If you don't agree with it, don't enter a business in which you will be put into such a position.

 

Sex stereotyping is telling a woman she isn't smart enough to be a lawyer because she's a woman. It is not asking a woman to fulfill the requirements of an occupation in order to do it with the most possible success.

 

You'll never see an ugly male bartender in a gay bar, will you? Of course not, it would be bad for business. The bartender would flirt, laugh, and draw people in with the intent of selling them more products.

 

I agree on that, And other places, say like a press area, you don't dress up, if you get ink on ya, shirt or pants will be ruined. Sorta like having in shape people working at front desk at gyms.

Edited April 17, 2007 by Drewbie

[shadowgod]

The L'oreal case while interesting does not compare to the Harrah's case. Comparing the two is like comparing apples and oranges. Harrah's decided to implement standards of appearance that were decided by its customer base. So those standards included women being made up and men being neatly groomed.

 

Don't blame a company for stereotypes decided upon and set in place by society at large. Especially something as ubiquitous as wearing make-up, which millions of woman do daily with out prodding or prompting by their employers.

 

Had she gone forth with the undue burden as to the additional costs of the makeup I could understand her case. On the Other hand men in a similar position would have to get their hair-cut at least twice as often as women would.

 

However that was not the way in which it was argued. She argued that the standards imposed were amount to sexual discrimination. Which, judging from the information received, they were not. Alleging standards of appearance are equal to sexual discrimination is an abuse of the law. The main focus is: would a man in the same position have his employment terminated if he failed to uphold the standards.

 

If a man was in a similar situation and was not fired, then it would be a case of unlawful sexual discrimination.

[Lugh]

so...

 

If I read this correctly the woman was working in this field THEN the employer changed the "rules" to make make-up manditory...

 

I'm not so sure that's discrimination, but it is damn inconsiderate.

 

What I do see as the discrimination is the undue cost aspect for several reasons..

 

ok each need a manicure so that cost is equal, but the woman is required to wear polish... that means she will either have to pay someone to do that (as part of her manicure) or do it herself, either way her increased cost for the manicure is say... $10 and 20 minutes. Styling takes 5-15 minutes a day with some gel/spray/mousse.

 

Each must have their hair groomed. The male must have his cut short that runs about $20 every 3-4 weeks and time of say... half an hour (with an appointment!). The woman must have her hair down and either "teased, curled or styled" which requires a few things... first, (at least to me) down implies longer hair which restricts the option of a short (thus manly) cut. Teasing and/or curled requires half an hour DAILY minimum to style and at least one styling product. "Styled" is too subjective for me... a little gel while blow drying could be styled... or not depending on the supervisor. Needless to say the required salon vists are at least an hour once a month (about the same as the male) with a cost of $50 or more... AND a daily investment of half an hour or more to keep up.

 

now the make-up... foundation/concealer and/or face powder runs about $10 at WALMART, blush is another $5-6, mascara another $6, and lip color $6-8. Applying all that stuff takes time... 15 -30 minutes (less as she becomes more practiced).

 

THAT (to me) is an undue burden on the female JUST BECAUSE SHE IS FEMALE.

 

The company required a person's "personal best"... what if their personal best was make-up free? The "personal best" portion of that regulation is too subjective.

 

Honestly if I were setting on the jury, I would say it is discrimination for all of the above reasons.