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Proving What Should Be Obvious

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When I hear all this talk about “frivolous lawsuits,” I’d be perfectly happy to concede that an occasional lawsuit can be brought with insufficient grounds or for the wrong reasons, if the people blathering on about such claims would in turn concede that there are meritorious cases that the courts throw out on completely asinine grounds. This past couple of weeks, there have been at least two federal lawsuits resulting in losses for the worker who brought them that meet that cringeworthy criterion. When a court dismisses a case for failing to “prove” what the average fifth-grader already knows, then it’s obviously dealing in the land of the frivolous. Let’s talk about that for a change, why don’t we?

You may have heard talk about “tort reform,” or as some folks in our camp like to call it, “tort deform,” which is an effort to reduce the number of lawsuits brought by individual citizens against large corporations. As much as they talk about “fairness” and “efficiency,” the movement is all about keeping money in the pockets of wrongdoers and out of the pockets of those who have been harmed by those who have violated health, safety, consumer and civil rights, and environmental laws. They constantly trot out the same tired examples: the McDonald’s coffee case, and in the workplace realm, overtime cases and disability cases.

But what about the cases where the judges seem to be going to the greatest of lengths to rule against workers with the most outrageous cases, often where the employer has admitted to the discriminatory policy or practice in question? They show up in the losses column, so they can be touted as yet another case that shouldn’t have been brought, but when you dig a little deeper, you see just how deliberately blind one would have to be to miss the discrimination happening in the case.

First, the case of Darlene Jesperson v. Harrah’s Operating Co., Inc. I’ve talked about Darlene Jesperson’s case before: Have They Ever Shared a Bathroom with a Woman? I was pretty incredulous back then that a court could rule in favor of a policy that requires women, and women only, to wear makeup every day to work, when all a male employee had to do is keep his hair cut at a manageable length (requiring a trip to the barber every six weeks at most). Well, a larger panel of judges in the 9th Circuit Court of Appeals, in what is known as an “en banc” opinion, has now ruled against Ms. Jesperson.

The majority opinion, which was written by a female judge, Chief Judge Mary M. Schroeder, and joined by two other female judges (Pamela Rymer and Consuelo Callahan), rules that Harrah’s casino didn’t discriminate against Darlene Jesperson when it fired her for violating its “Personal Best” policy requiring her, but not her male bartender colleagues, to wear makeup. The basis for the ruling is that Jesperson “failed to present [sufficient] evidence…that the policy imposes an unequal burden on women.”

There is a silver lining to the ruling: the court did rule that appearance standards that were unequal for women and men might constitute sex stereotyping, but said that Jesperson didn’t adequately prove her case. But that ruling is of no comfort to Ms. Jesperson, who still doesn’t have a job similar to the one she held for 20 years. As Jennifer Pizer of Lambda Legal, one of Jesperson’s attorneys, commented, “I’m heartbroken for Darlene and elated for working men and women across the U.S. Before this case, we didn’t know whether the sex stereotyping doctrine applied to dress codes.” (See Recorder article.)

At the heart of the matter, the majority of the court believed that Jesperson did not introduce enough proof that wearing face powder, blush and mascara and lip color on a daily basis, as required of female employees by the Harrah’s policy, took more time and effort than keeping hair trimmed above the collar, required of male employees. (Notably, the Harrah’s policy did not ban male facial hair, which given that most men need to shave at least once daily to remain clean-shaven, would most likely have been a comparable requirement in time expended, if not its expense.) The court said, “Jespersen did not submit any documentation or any evidence of the relative cost and time required to comply with the grooming requirements by men and women. As a result, we would have to speculate about those issues in order to then guess whether the policy creates unequal burdens for women.” (Majority opinion at page 13.) Given the obvious ability for Jesperson to do so, the court could have remanded the case back to the lower court to permit her to add this evidence (not introduced because she thought it was so obvious the court could recognize it without specific evidence), but didn’t do so.

Two dissents, written by male judges, appear to have the most persuasive side of the argument, but alas did not carry the day. In a dissent written by Judge Harry Pregerson, and joined by three other members of the panel (Judges Kozinski, Graber, and William Fletcher), Judge Pregerson calls the makeup requirement a “facial uniform” that women and not men are required to wear at work, and notes, “The inescapable message is that women’s undoctored faces compare unfavorably to men’s, not because of a physical difference between men’s and women’s faces, but because of a cultural assumption — and gender-based stereotype — that women’s faces are incomplete, unattractive, or unprofessional without full makeup.” (Dissent at page 23.) As such, Judge Pregerson and the colleagues that joined him didn’t need proof that makeup cost more.

The dissent I would recommend that everyone read was written by Judge Alex Kozinski, who is rarely known for his progressive opinions (although quite well-known for his well-written, insightful, clever and entertaining ones). He said,

It is true that Jespersen failed to present evidence about what it costs to buymakeup and how long it takes to apply it. But is there any doubt that putting on makeup costs money and takes time? Harrah’s policy requires women to apply face powder, blush, mascara and lipstick. You don’t need an expert witness to figure out that such items don’t grow on trees. Nor is there any rational doubt that application of makeup s an intricate and painstaking process that requires considerable time and care. Even hose of us who don’t wear makeup know how long it can take from the hundreds of ours we’ve spent over the years frantically tapping our toes and pointing to our wrists.

(Dissent at page 24-25.) Judge Kozinski takes seriously Ms. Jesperson’s assertion that wearing makeup makes her feel uncomfortable and at odds with her own self-image.

Whether to wear cosmetics—literally, the face one presents to the world—is an intensely personal choice. Makeup, moreover, touches delicate parts of the anatomy—the lips, the eyes, the cheeks—and can cause serious discomfort, sometimes even allergic reactions, for someone unaccustomed to wearing it. If you are used to wearing makeup—as most American women are—this may seem like no big deal. But those of us not used to wearing makeup would find a requirement that we do so highly intrusive. Imagine, for example, a rule that all judges wear face powder, blush, mascara and lipstick while on the bench. Like Jespersen, I would find such a regime burdensome and demeaning; it would interfere with my job performance. I suspect many of my colleagues would feel the same way. Everyone accepts this as a reasonable reaction from a man, but why should it be different for a woman?

(I guess Judge Kozinski is not angling to adopt the British custom of judges wearing wigs.) It’s clear that Judge Kozinski has shared a bathroom with a woman, as I discussed in my previous blog. (It is also perhaps noteworthy (or maybe not) that Judge Kozinski was named the No. 1 “Male Superhottie of the Federal Judiciary,” by Underneath Their Robes, a blog devoted to “News, gossip, and colorful commentary about the federal judiciary,” and back in the day was a former contestant on the Dating Game. See The Hot. Alex Kozinski.)

The most refreshing part of the whole dissent, however, was when Judge Kozinski noted the following:

I note with dismay the employer’s decision to let go a valued, experienced employee who had gained accolades from her customers, over what, in the end, is a trivial matter. Quality employees are difficult to find in any industry and I would think an employer would long hesitate before forcing a loyal, long-time employee to quit over an honest and heartfelt difference of opinion about a matter of personal significance to her. Having won the legal battle, I hope that Harrah’s will now do the generous and decent thing by offering Jespersen her job back, and letting her give it her personal best—without the makeup.

(Dissent at page 26.) How many judges personally admonish employers like that in their opinions? Not many. Will it work? Not likely. Not enough judges seem to care about employers doing what is generous and decent.

In a second recent opinion, this time the Eighth Circuit Court of Appeals takes what should be a no-brainer and works really hard to avoid the obvious conclusion, in Cottrill v. MFA, Inc, a decision hailing from the northern Missouri region where I grew up. The two female employees in Cottrill eventually found out that their supervisor had a peephole in the wall of the women’s restroom, right next to his personal break room. Conveniently, the supervisor would always take a break when Ms. Cottrill headed for the restroom, and eventually was forced to plead guilty to the Class C felony of invasion of privacy after being caught in the act of viewing her restroom activities through the peephole. They also found in the supervisor’s break room a bag with leaves (which appeared to be poison ivy) and a sticky substance, which probably explained the rashes from which Ms. Cottrill occasionally suffered while employed under that supervisor.

Ms. Cottrill and the other female employee who used the restroom sued MFA for sexual harassment. Their charge filed at the EEOC read as follows:

My supervisor, Scott Adkins, created a hostile work environment by peeping into the women’s restroom for years. Upon discovery of this I reported the peephole and in October 2002 Scott Adkins was caught and confessed. Adkins was convicted of a felony for invasion of privacy in Gentry County, Missouri.

(Opinion at page 8). Now it should be pretty obvious that Ms. Cottrill and her coworker faced conditions that the male employees at the MFA didn’t face, but the majority of the court said,

The EEOC charges of Cottrill and Combs allege no facts concerning treatment of male employees nor do they identify any adverse employment action. In fact, it was not until Cottrill and Combs filed their opposition to MFA’s motion [to dismiss the case] that they first construed their district court complaint to include claims for disparate treatment on the basis that the conditions of the women’s restroom were different from those of the men’s restroom.

(Opinion at page 8). Ultimately, the court ruled, it wasn’t sex discrimination because Ms. Cottrill and her coworker didn’t specifically say in their EEOC charges that their supervisor Adkins didn’t look at male employees in the restroom. This of course neglects to consider that the MFA management, including Ms. Cottrill’s brother-in-law, knew that only the women’s restroom was affected, since they worked with her to catch Adkins in the act of peeping from the room adjacent only to the women’s restroom. It wasn’t a hostile work environment because Cottrill didn’t know about the peeping as it was happening, so couldn’t have found the environment to have affected her employment. (Nevermind how she felt about it when she found out.)

This court, like the 9th Circuit in the Jesperson case, goes to great lengths to ignore the obvious and reject a claim where it was not disputed that the female employees had to put up with something that the males did not have to. I’d say it was as plain as the nose on their faces, but unless that nose is powdered to the employer’s specifications, that doesn’t seem to count either.

9th Circuit Makes Up Mind in Sex Bias Case


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