December 29, 2004

Fired for refusing to wear makeup.

The NYT reports:
A bartender who refused to wear makeup at a Reno casino was not unfairly dismissed from her job, a federal appeals court in San Francisco ruled. The bartender, Darlene Jespersen, who had worked for 20 years at a Harrah's casino bar, objected to the company's revised policy that required bartending women to wear makeup. Ms. Jespersen was fired in 2000, and she sued, alleging sex discrimination. In a 2-to-1 decision, a panel of the United States Court of Appeals for the Ninth Circuit upheld a lower court's ruling in favor of Harrah's.

Is it hard to imagine a person who has held a job for 20 years refusing to do something that is this simple and painless to avoid getting fired? I can think of several reasons a person might take a stand here: religious objection or strong feminism. There might also be a more complicated dispute with the employer; perhaps being forced to wear makeup was just the last in a series of rules that, taken together, made the employment odious. A Google search turned up this article in Mother Jones magazine, which portrays Jespersen as having the feminist objection (which is consistent with suing the employer for sex discrimination) and quotes her as saying: "I felt that it would have been a higher price to pay if I had stayed there and let them humiliate me."

Harrah's took the position that "that they are in the entertainment business, and employees must play their parts." It's not surprising that the courts permit employers to have different grooming rules for men and women. (Harrah's forbad makeup for male employees.) But even if the law permits it, Harrah's did not have to treat its longterm employee so harshly.

UPDATE: An emailer writes:
I'm a management labor attorney, who works with management employment attorneys. In almost all of these cases, the reason for the dismissal is not as black and white as the plaintiff would have it appear. I see you anticipate that by noting the possibility that this may have been one in a series of rules that made work odious. (But odious by whose definition?) And the fact that someone has been there for a long period of time should not be of any moment whatsoever. Some companies keep poorly performing employees around, especially women or minorities, just because they think they might sue if they're fired. That's a big mistake, because eventually it reaches a point where they are so bad they have to get fired, and they the employee sues anyway. Then they offer their experience as evidence that they couldn't have been so bad, or else why would they have lasted so long. It's an unfortunate catch 22 for employers.

Other employers keep poorly performing employees for purely sentimental reasons, like they knew their relatives. Many others do so because they don't want to leave a family without a breadwinner, no matter how lousy the guy is. It is frequently a case of "no good deed goes unpunished" when the employee sues anyway, and offers long experience for evidence of good performance.

I have no expertise in labor law myself, but as a matter of personal opinion, I will say that I think there is some room for sentimentality in business, and certainly there is room for benevolence. On the other hand, I don't think it's right for some employees to be excused from rules that will be enforced against others. If one older women bartender gets to go without makeup, I don't see how you can fire a newer worker who wants to do the same.

Still, there are some new rules that could be imposed that might work to drive out older workers. The linked Mother Jones article refers to casinos that require women to wear high heels, a rule that would be much harder for an older woman to tolerate.

Note that Harrah's went beyond requiring makeup. It had professional stylists fix up the employee, who was then photographed, and that photograph was used as a "personal best" standard that the employee was supposed to maintain. Is that odious or benevolent? I don't know. It's hard to tell what the real experience for employees was from the short articles I've seen. You might think it's fairly benevolent. They gave the employee a makeover and then held the employee up to a standard of grooming individual to her. No one asked her to look like a picture of a model. But maybe it was onerous. Anyone who has ever had her makeup and hair done by a good professional knows you can't do it as well on your own.

So I'd want to know how intrusively and stringently the photograph was used to pressure the employee into reaching that "personal best." In any case, I'm sympathetic to employers who fear lawsuits, and I note again that I'm not talking about where the judicial system should step in. I think a rational employer -- even a cold-hearted one -- ought to want its employees to think they are working in a great place that treats them well.

ANOTHER UPDATE: How Appealing links to my post and provides a link to the Ninth Circuit opinion, which I've now read. I see that the main problem is that the plaintiff (Jespersen) failed to show that the standard imposed on women was more burdensome than the one imposed on men. The case law was clear that it isn't illegal sex discrimination to have different appearance rules for men and women, but it might be illegal if the rules imposed on one sex were more burdensome. There was a case involving weight standards where men only had to keep their weight at the level recommended for a "large" build but the women had to meet the level recommended for a "medium" build. Harrah's required the men not to wear makeup, which is less work and expense than having to wear makeup, but this this obvious difference in burden wasn't enough to avoid summary judgment for the defendant, because the court insisted on looking at the whole set of grooming requirements imposed on men and women. The men had to keep their nails and hair trimmed, for example.

Jespersen argued that "cosmetics can cost hundreds of dollars per year and putting on makeup requires a significant investment in time," but the only evidence was academic literature about the "cost and time burdens of cosmetics generally." How much does it actually cost to buy the lipstick, mascara, foundation, and blusher that Harrah's required? You could easily spend hundreds annually on such things, but if you buy ordinary brands at the drugstore, it would be much less. The fact that many women (including myself) are lured into buying luxury brands is not part of what Harrah's is requiring. The court was willing to take "judicial notice" that some expense was involved, but is it really significantly more than what the men have to spend? Those frequent haircuts really could cost more and take more time.

Of course, none of this addresses the problem that Jespersen had with being forced to conform to a female stereotype, which the dissenting judge was willing to take on.

1 comment:

kotter said...

Makeup is not Grooming. Use a dictionary. Makeup is like a uniform. If the employer requires
it, they should pay for it. Including training on use, and any
medical expenses resulting.
And employees should keep files on
manager,supervisors,employers stating mistreatment of themselves
with back up from fellow employees
and so on. Can employers sue employees who don't fulful a promise? Pretty soon everyone, even
the lowest wage earner will have to
have a written contract. And everyone will have to have lawsuit
insurance!!!