Have They Ever Shared a Bathroom with a Woman?

I realize that I, and many of the readers of this blog, manifest some bias in favor of workers who take on their employers in the legal system. After all, it’s why we do what we do. However, even recognizing this bias, every once in a while, a case comes along that makes even a cynical employee advocate ask “what planet are these judges from?” when reviewing their ruling against an employee. One such case is that of Jespersen v. Harrah’s, decided last week by the 9th Circuit Court of Appeals. Let’s hope this case is another one that the Supreme Court will champ at the bit to overturn, or even better, that there will be enough wisdom found amongst a larger (en banc) panel of the court, that Jesperson, and justice, will prevail.

Darlene Jespersen was a bartender at Harrah’s Reno for nearly 20 years. One thing upon which everyone agrees: she was a really good bartender. According to the 9th Circuit, it is “undisputed” that

[o]ver the years, Jespersen’s supervisors commented that she was “highly effective,” that her attitude was “very positive,” and that she made a “positive impression” on Harrah’s guests. Harrah’s customers repeatedly praised Jespersen on employee feedback forms, writing that Jespersen’s excellent service and good attitude enhanced their experience at the sports bar and encouraged them to come back.

(See Jesperson v. Harrah’s 9th Circuit decision.) According to a Mother Jones article which praised her as a “hellraiser,” the tall, soft-spoken 45-year-old woman was an unlikely candidate to receive such a designation. (See Mother Jones article.) She had not been an activist or rabble-rouser during her tenure at Harrah’s, until the casino’s “Personal Best” policy came along.

Put simply, Harrah’s policy is “women must wear makeup; men can’t.” The policy requires women to wear foundation, concealer, or powder, blush, mascara, and to make sure that they have lip color on at all times (a challenge which has earned cosmetics manufacturers millions from women tired of constant reapplication after eating or even talking.) Not only do women have to wear all these types of makeup, but they were required to have a “makeover” by an “image consultant.” Once the employee and the image consultant had devised the employee’s “personal best” look, then the employee’s picture would be taken, and the employee’s appearance would be expected to conform to the picture each day she or he came to work. (See Barbwired for Jesperson’s Personal Best photo, sans makeup, and yes, she looks just fine without it.)

It seems like an awful lot of trouble just to get people to spend money in a casino (which we know can be difficult, right?) As Jespersen commented, “I never had anyone push a drink back because I didn’t have red lips.” (See Associated Press article.) However, Harrah’s deemed it important enough to make it a company-wide policy.

It may be hard to believe in the age of Extreme Makeover and The Swan, where radio stations give away boob jobs for Christmas rather than help needy children (see Associated Press article), but Darlene Jesperson didn’t want a makeover. She thought she looked just fine as she was. And she most emphatically didn’t want to wear makeup. When she started working for Harrah’s back in the 1980s, company policy encouraged, but not required, wearing makeup. She tried it, but found that

wearing makeup made her feel sick, degraded, exposed, and violated. Jespersen felt that wearing makeup “forced her to be feminine” and to become “dolled up” like a sexual object, and that wearing makeup actually interfered with her ability to be an effective bartender (which sometimes required her to deal with unruly, intoxicated guests) because it “took away [her] credibility as an individual and as a person.”

(See Jesperson v. Harrah’s 9th Circuit decision.)

The policy, on its face at least, doesn’t make any exceptions for women who don’t need a particular type of makeup, so it would seem that female employees with clear skin still have to wear foundation, women with long eyelashes still have to wear mascara, and women with naturally rosy cheeks still have to wear blush. (Nothing is more guaranteed to detract from one’s appearance than wearing more makeup than necessary, but perhaps the “image consultant” would make individualized exceptions. Or Harrah’s really does want its female employees to be “dolled up,” regardless of how that looks.) For her part, Jespersen thought makeup made her look like a clown, and given that those who have personally interviewed her have commented on her clear skin and naturally attractive appearance, she may be right. (See Christian Science Monitor article.)

Employers, however, can impose all kind of arcane and senseless requirements on their employees without violating the law. If you don’t like it, you can always find another job, employees who challenge the status quo (especially if they’re not members of a union, which most workers in Reno are not) are told. What made Harrah’s conduct illegal, or so Jesperson and her attorneys thought, was the difference between how female employees and male employees were treated under the Personal Best policy.

While a female employee must spend however long it takes to put on makeup in the morning, men were not required, and in fact forbidden, to wear makeup. While a female employee had to tease, curl, or style her hair every day, men only had to show up with hair trimmed above the shirt collar that was “well-groomed.” Women had to paint their fingernails with clear, white, pink or red polish (very practical for employees who handle ice and must frequently wash their hands), while men were not allowed to wear colored polish. The result of Harrah’s policy was that women had to spend a significant amount of time, money, and effort to meet the company’s standards, while men only had to follow basic grooming and hygiene guidelines without having to “do” anything extra in order to show up for work. (See Jesperson v. Harrah’s 9th Circuit decision, pages 17363-4, for the full text of the Personal Best policy.)

So why isn’t that sex discrimination? Because two men on a three-judge panel of 9th Circuit judges says it isn’t, in an opinion which defies all logic in a world comprised of more females than males. In order for Harrah’s appearance standard requirements to violate the law, they must be an “unequal burden” on female employees. The law around appearance standards and dress codes has been rather slow to catch up with other areas of discrimination law; put simply, self-expression through one’s appearance has little to no weight when compared to the employer’s interest in maintaining conformity amongst its employees. Even sex-specific differences in appearance standards (including those affecting men) seem to rarely violate the law: women can wear long hair, while men cannot; women can dye their hair, while men may not be allowed to; and women can have their ears pierced, while men may not be allowed to wear earrings on the job.

It seemed like, however, that Jespersen’s case might be different, given the greater burden placed on female employees. However, here’s what the 9th Circuit has to say about that:

Jespersen contends that the makeup requirement imposes “innumerable” tangible burdens on women that men do not share because cosmetics can cost hundreds of dollars per year and putting on makeup requires a significant investment in time. There is, however, no evidence in the record in support of this contention. Jespersen cites to academic literature discussing the cost and time burdens of cosmetics generally, but she presents no evidence as to the cost or time burdens that must be borne by female bartenders in order to comply with the makeup requirement. 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, and exceed whatever “burden” is associated with ordinary good-grooming standards. Because there is no evidence in the record from which we can assess the burdens that the “Personal Best” policy imposes on male bartenders either, Jespersen’s claim fails for that reason alone.

Have these judges never lived with or shared a bathroom with a woman? This seems like an issue that even Justice David Souter, the U.S. Supreme Court’s perennial bachelor, could understand. The lone judge voting in Jespersen’s favor recognizes the absurdity of this argument:

[A] reasonable jury could easily conclude that having to wear approximately as much makeup as one was wearing post-makeover, in addition to teasing, curling, or styling one’s hair every day, constitutes more of a burden than having to keep one’s hair short and cut one’s fingernails. All of these activities are ones with which factfinders have everyday familiarity….

(See dissent by J. Thomas, Jesperson v. Harrah’s at page 17478.) Even if, as the majority requires, the legal basis of comparison is all of the requirements applicable to female employees vs. those applicable to male employees, instead of the female makeup policy vs. the male makeup policy, it seems beyond obvious that women going to work at Harrah’s will spend more time in the bathroom every morning before work than their male counterparts (whether they want to or not). And they’ll definitely be spending more money, even on the cheapest Maybelline and Cover Girl cosmetics at Wal-Mart or Target (never mind Clinique or MAC at Macy’s or Nordstrom), than their male coworkers (even metrosexual devotees of Queer Eye for the Straight Guy) ever will, even those men forced to visit their local barber more often than the women do. (It should also be a proper subject for judicial notice that men’s haircuts always cost less than women’s haircuts.)

One also wonders whether Harrah’s weight policy, not at issue in Jespersen’s case, would survive legal scrutiny. Officially, it says

[Beverage Service Personnel] 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.

According to those familiar with the policy, the language about “firm and body toned” and “overall body contour” means that an employee cannot get a new uniform, even if she or he gains weight, unless, get this, the employee has had a boob job (referred to by the company as “positive body enhancement.”) New mothers, even those who are nursing, are expected to fit in their uniforms within 12 weeks of giving birth. (See Barbwire article: Bill Harrah’s back and boy, is he pissed.) While the majority’s decision seems to have missed the point that women shouldn’t have to conform to sex-based appearance stereotypes to which men do not have to conform, given how the majority seemed slightly more sympathetic (based of course on prior 9th Circuit precedent) to weight-based distinctions that affect one sex more severely, perhaps the case might have turned out a little differently if Jespersen had been a non-makeup wearing new mother. Or maybe not: this panel’s obliviousness seems to have few boundaries.

Jespersen has been blackballed from the gaming industry–hardly insignificant when you’re a unskilled worker in Reno, and now works in retail. (See Barbwire article: The true face of Nevada gambling.) She still doesn’t wear makeup, but also probably doesn’t take home nearly as much as she used to. Even though Oprah got involved (see Barbwire link), Harrah’s still enforces personal appearance policies (although it’s unclear whether they still enforce the actual Personal Best policy. (See Providence Journal article.) Harrah’s did offer Jespersen her job back at one point, but the policy would still apply to other employees, and the offer didn’t include the back wages Jespersen lost while unemployed. So Jespersen rejected the offer. (See Newsday article.)

She will continue her fight, first to ask a larger panel of 9th Circuit judges, called an en banc panel, to reconsider the case, and then to the U.S. Supreme Court, if needed. The U.S. Supreme Court loves to take every opportunity it can to slap down wayward 9th Circuit decisions (see this analysis), but hopefully the en banc panel (hopefully with a few of the circuit’s eight female judges or those married to women who know better, like Stephen Reinhardt, involved), can fix this one before it gets to the Court.

Her lawyers (of Lambda Legal, led by Jennifer Pizer) are “surprised and deeply disappointed by [the] decision,” which is probably an understatement compared to how Darlene Jespersen feels. She told Mother Jones, long before this latest decision came down, “I don’t see why I have to paint my face to do that job when I’ve been doing it for 20 years.”

Neither do we.

More Information:

Barbwire by Andrew Barbano: Barbano has followed this case closely for several years now; this site contains a number of links related to Jespersen’s case.

Op-Ed by Darlene Jesperson: Case Is About Civil Rights and Sex Bias

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Madeline Messa

Madeline Messa is a 3L at Syracuse University College of Law. She graduated from Penn State with a degree in journalism. With her legal research and writing for Workplace Fairness, she strives to equip people with the information they need to be their own best advocate.