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Thursday, December 30, 2004

Makeup Ruling on the Money...

9th Circuit: Employer Can Force Women to Wear Makeup

Justin M. Norton
The Recorder

In an opinion likely to raise the ire of civil rights and feminist groups, a divided 9th U.S. Circuit Court of Appeals panel ruled Tuesday that a woman who was fired from her job as a casino bartender for refusing to wear makeup cannot sue for sex discrimination.

The 2-1 decision rejected bartender Darlene Jespersen's argument that Harrah's Operating Co. violated her rights when it implemented "Personal Best" image standards requiring women to wear makeup and men to trim their fingernails and keep their hair short.

"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," Senior Judge A. Wallace Tashima wrote for the majority.

Judge Barry Silverman concurred.

Judge Sidney Thomas dissented, saying that a jury easily could have found that the makeup requirement illegally requires female employees to conform to sex stereotypes, or that it places more of a burden on women than Harrah's male grooming standards.

"Sex-differentiated appearance standards stemming from stereotypes that women are unfit for work, fulfill a different role in the workplace, or are incapable of exercising professional judgment systematically impose a burden on women, converting such stereotypes into stubborn reality," Thomas wrote.
(Continued at

I took a little skip around the blogosphere to see if anyone had an opinion on this case. I should have known better. It seems that anyone who stumbled across the decision had an opinion. Various and the indifferent can be seen here, here, here, there, everywhere...

Most seem to think that the 9th Circuit Court of Appeals blew another one. They didn't. In fact the only stupidity here is that something like this requires a Court decision in the first place. Simply put, a private company initiated a company policy (across the board) that reflected on their business, and ultimately, their bottom line. There is little difference from requiring make-up, or requiring that the McDonalds Employees wear those polyester uniforms with the golden arches patch.

Here's a little secret. Jespersen could have won this case before it even got to the lower Court. Harrah's Operating Company would have rolled over without a fight. All Jespersen had to do was get a quick note from a dermatologist that confirmed that continued use of foundation/concealer and/or face powder caused discomfort, and resulted in occasional acne, as well as other skin irritations. Then, she could inform her employer that the application of the Americans with Disabilities Act required her employer to make reasonable accommodation. End of story. Instead, she chose to challenge the company policy head on.

And, she did so poorly. The 9th Circuit points out that there was nothing in the record that documented that she would end up spending 100's of dollars on make-up a year, and invest much time in application. She failed to document, and therefore, make her case.

But, it's more than that. Suppose I worked for a major corporation (which I do). Suppose that major corporation required that all males have to wear a suit and tie to work every day (which they do). Suppose women in a similar position are only required to wear a suit (which they do). It seems to me that I end up spending, nearly, $1,000 in ties over the year (that’s about 30 good silk neckties). Based on the line of thinking of the plaintiff in the underlying case, I am being forced to present a stereotype of a "stuffed shirt businessman," and that effort requires me to spend significantly more money than a female in a similar position. Is there no justice? None needed…

She had no case since this was a private company with an (across the board) imposed dress code. The 9th Circuit made the right choice.

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