In a class by themselves: the legal status of employee appearance policies under title VII after Jespersen v. Harrah's Operating Co.

This article discusses the status of appearance rules under Title VII after Jespersen.

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For 20 years, Darlene Jespersen was a competent and popular bartender at Harrah's Casino in Reno, Nevada. In 2000, Harrah's launched a "Personal Best" employee appearance program that required female beverage service personnel to wear makeup. Jespersen refused to comply and lost her job. She then sued for sex discrimination under Title VII of the 1964 Civil Right Act, (1) arguing that the makeup requirement imposed an unequal burden on women and reflected a stereotypical view of how they should look. In Jespersen v. Harrah's Operating Co., (2) the Ninth Circuit Court of Appeals, sitting en banc, (3) held seven to four that Harrah's was entitled to summary judgment on both claims.

For various reasons, courts have traditionally taken a deferential approach to appearance policies, even those with sex-differentiated requirements. Before Jespersen, the only basis for a Title VII challenge was that they imposed an unequal burden on one sex; in Jespersen, the court rejected this argument on the grounds that the plaintiff offered no proof that the makeup policy did this and that this was not subject to judicial notice. The court also rejected the sex stereotyping theory based on the facts, but in so doing it became the first federal appeals court to squarely hold that the theory could be used to contest a grooming policy. As a result, employees now have, at least in theory, two avenues through which to attack such policies under Title VII.

This article discusses the status of appearance rules under Title VII after Jespersen. It examines how societal attitudes toward the use of makeup have evolved and how employers use it to screen women into and out of the workplace. It explores how sex was included in Title VII and how the interpretation of the word has changed since the law was enacted. It reviews cases involving the unequal burden and sex stereotyping theories of sex discrimination. Finally, it analyzes how the Jespersen court dealt with those claims and what this may signify for the future. The article concludes that although the court said that a plaintiff could rely on both theories to challenge a grooming policy, it appears from what the court did in the case that it will be difficult for plaintiffs to win under either one.

BACKGROUND

Harrah's Personal Best Policy

As amended in 2000, the Personal Best policy provided in relevant part:

 
   All Beverage Service Personnel, in addition to being friendly, 
   polite, courteous, and responsive to our customer's [sic] needs, 
   must possess the ability to physically perform the essential factors 
   of the job as set forth in the standard job descriptions. They must 
   be well groomed, appealing to the eye, be firm and body toned, and 
   be comfortable with maintaining this look while wearing the 
   specified uniform. Additional factors to be considered include, but 
   are not limited to, hair styles, overall body contour, and degree of 
   comfort the employee projects while wearing the uniform. 

Beverage Bartenders and Barbacks will adhere to these additional guidelines:

* Overall Guidelines (applied equally to male/female):

* Appearance: Must maintain Personal Best image portrayed at time of hire. * Jewelry, if issued, must be worn. Otherwise, tasteful and simple jewelry is permitted; no large chokers, chains, or bracelets.

* No faddish hairstyles or unnatural colors are permitted.

* Males:

** Hair must not extend below top of shirt collar. Ponytails are prohibited.

** Hands and fingernails must be clean and nails neatly trimmed at all times. No colored polish is permitted.

** Eye and facial makeup is not permitted.

** Shoes will be solid black leather or leather type with robber (non skid) soles.

* Females:

** Hair must be teased, curled, or styled every day you work. Hair must be worn down at all times, no exceptions.

** Stockings are to be made of nude or natural color consistent with employee's skin tone. No runs.

** Nail polish can be clear, white, pink or red color only. No exotic nail art or length.

** Shoes will be solid black leather or leather type with rubber (non skid) soles.

** Make up (face powder, blush, and mascara) must be worn and applied neatly in complimentary colors. Lip color must be worn at all times. (4)

The Role of Makeup in History

Makeup has had an intriguing history. To summarize a recent discussion of this issue by Professors Carbado, Gulati, and Ramachandran, (5) European and American men and women in the 1600s used it to display class status and wealth. During the run-up to the American Revolution, however, a middle-class, anti-aristocratic morality developed in America and instilled the notion that makeup, and adornment generally, were depraved because they signified patrician styles that were incompatible with a republican society of manly citizens and virtuous domestic women. In particular, makeup was deemed to be at odds with emerging feminine ideals of domesticity and purity. By the Civil War, the shift in societal attitudes was so complete that makeup was linked with a female tendency to vice, and "painted" women were seen as corruptible and uncontrollable sexually. Although beauty was considered desirable, it was thought to result from virtuous habits; thus, women were urged to achieve a beautiful appearance by living a clean life, not by the artifice of cosmetics. (6)

In the late 1800s the pendulum swung back and the notion of women legitimately using makeup to perform various roles took hold. Actresses who used it became celebrities, signaling that other women could safely use it. Photography studios became places in which people dressed their best, which included the need for retouching when the picture revealed too much distance between ideal beauty and reality. In the early 1900s, when the role of women underwent rapid social change, makeup became more popular. Where women had been relegated to the domestic arena, they began assuming public roles as consumers and workers, and the cosmetics industry seized on the changing notions of female identity to reconstruct the role of cosmetics for women. "Beauty culture" entrepreneurs stressed the potential that makeup afforded to broaden their range of identities by choosing whatever "look" they wanted as they participated in the public sphere. People also came to believe that makeup would reveal the good and beautiful woman inside. (7)

By the mid 1900s the use of makeup had become a normal and necessary part of being a woman, a social technology for gender conformity. As more women participated in formerly male spheres such as politics and the labor market, it also served to appease anxieties about this intrusion and integration by helping to ensure the maintenance of separate male-female roles. That women wore makeup at work reinforced the idea of women as women, not as workers. Some companies encouraged this gender signaling by offering beauty salons, cosmetics stations, charm classes, and beauty advice. (8)

In the late 1960s, new dissenting voices could be heard, as the feminist and black civil rights movements questioned existing ideals of beauty. Central to their critique was the notion that the beauty industry regarded women as a product for male consumption, and makeup was seen as an integral part of the effort to properly package them. (9) As this was also the era in which new personal rights were recognized--the right to privacy, the right not to suffer discrimination based on sex, etc.--some women opposed wearing makeup on the ground that they should be able to present themselves to the world however they see fit, including with no makeup.

It is, of course, one thing to choose to wear makeup at work and another to have to do so. In discussing the latter issue and arguing that privacy, not discrimination, laws afford a better way to challenge appearance rules, Professor Catherine Fisk contended that many such rules are more about an assertion of power and control by employers over employees than anything else. (10) The essence of her position is that our appearance is a function of how we see and feel about ourselves and want to present ourselves to the world. It is a vital aspect of how we signify our gender identities. Although there are situations in which rules are justifiable--requiring police officers to wear uniforms to make them easily identifiable, making an orchestra wear tuxedos to set a mood--some simply represent an effort by the employer to induce conformity for its own sake, or to say "You're my employee so I can tell you how to dress yourself." By way of example, Professor Fisk pointed to former Boston Red Sox player Johnny Damon, who was revered for his long hair and beard, but who had to meet with a barber when he went to the New York Yankees, because its owner insisted that his players be clean-cut. According to Fisk, such cases involve a stripping of the right of autonomy--the right to make choices--which many employees find offensive, even if they do not object to the underlying rule. Probably nowhere is this more keenly felt that when an employer insists, on penalty of losing one's job, that one alter one's appearance in a way that one finds offensive, degrading, etc.

This, in Fisk's view, is at the heart of Jespersen, making it more a case about autonomy than gender conformity. Not only did Harrah's want to feminize and sexualize Jespersen, it also wanted to control her. That it controlled all of its employees via appearance rules and no one else rebelled against the policy, at least to the extent that Jespersen did, did not make the makeup rule any less demeaning and intrusive to her. Fisk further notes that in this situation the employer will almost always go to the mat in the face of defiance by the employee--as Harrah's did in forcing Jespersen to leave her job--because to do less would cause it to lose control over the workplace.

In sum, there are now many different attitudes toward makeup. Many women regard wearing it as pleasurable. It makes them look and feel good. It allows them to choose an identity. It permits them to transform themselves into the gender-role types expected in particular jobs, such as saleswoman, secretary, or waitress. It tells employers and co-workers that gender integration does not mean the disruption of gender hierarchy. Other women are at least content to wear it. They know that women are expected to do so and that both sexes are more comfortable with women who …