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Hair, Face, Clothing Standards (Part 2)

Face It: Cosmetics Are Costly and Time Consuming

But Women Cannot Refuse to Wear Make Up Without Proof of "Unequal Burden" Based on Gender

Sex Stereotyping of Employees

  • FACTS: Darlene Jespersen was a bartender of 20 years employment with Harrah's, Reno. Harrah's management required that she wear facial make up to comply with a new company grooming policy. She refused, quit in protest, and sued for damages based on gender discrimination.
  • KEY POINT: Harrah's required all bar employees to wear a tuxedo-like suit, and required the men to have hair cut above the collar, but also women to wear make up, including lip stick, at all times.
  • CONTENTION: The issue was whether the facial make up requirement for women was gender stereotyping that created an unequal burden on women. A federal appellate court (Ninth Circuit) covering California held that the policy was "not facially discriminatory". [Chuckle].
  • THE LAW: The Court applied the reasoning of a U.S. Supreme Court decision, Price Waterhouse (1989) 109 S.Ct. 1775. The Price Waterhouse test is whether the "stereotype" is applied discriminatorily to make it more difficult for a woman to succeed in her job. In Price Waterhouse, a female accountant was discouraged by management from showing the persistence and aggression that men showed in achieving their goals to become Price Waterhouse accounting partners. The female in that case was told that she needed a course in charm school, to dress more femininely, wear make up, talk and walk more femininely, have her hair styled, and to wear jewelry. (Price Waterhouse at 235). The Supreme Court found this sex stereotyping to be illegal if the "stereotype" motivated management to deny the female accountant partnership status.
  • THE OUTCOME: So, why didn't Jespersen's case fall within the reasoning of the Price Waterhouse case? The Ninth Circuit concluded that the requirement of applying facial make-up, while stereotyping, did not require Jespersen "to conform to a stereotypical image that would objectively impede her ability to perform her job requirements as a bartender". Also, the court looked to the underlying motivation of the "make-up" requirement. Harrah's goal was to present an image that presented a positive image to customers. The goal was not to impede Jespersen's equal opportunity to succeed in her work.
  • CONCLUSION: Jespersen, who wore no make up off the job, had a strong personal aversion to using make up. Yet, the sincerity of her protest was not the only test. She also needed to present objective evidence that the cost and time required of her to apply make-up was an "unequal burden" on women. She also needed to present evidence that the requirement impeded her ability to succeed and advance in her bar-tending occupation. Unlike the woman in Price Waterhouse, she presented no such evidence, and so lost this case before it could even be tried to a Jury.

Employee Rights Attorney Frank Pray

5160 Campus Drive

Newport Beach CA 92660

949.251.1006

877.job.atty


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