Gender Discrimination: Women Can be Terminated for Refusing to Wear Makeup

Introduction

Title VII Gender Discrimination: Ninth Circuit Court ruled that women can be terminated for refusing to wear makeup. Jespersen v. Harrahs, 444 F3d 1104 (9th circuit, 2006). In this case, the ninth circuit held that Darlene Jespersen, a female bartender fired for not wearing makeup did not establish a prima facie case of gender discrimination under Title VII. According to Harvard Law Review (2006), gender inequality is exacerbated when the personal effects of the narrow standard of beauty are combined with economic barriers facing women.

As amended in 2000, Harrahs Personal Best Policy requires that 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. (Bible, 2007)

Harrahs Personal Best Policy:

• 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.

For over twenty years, Darlene Jespersen was employed as a bartender at Harrah's casino in Reno, Nevada. She was an exemplary employee who received positive reviews from both customers and supervisors. Jespersen complied with the appearance policy in every respect except for the makeup requirement. She did not wear makeup on or off the job and said that "wearing it would conflict with her self-image". She found the makeup requirement offensive and saw it as further evidence that Harrah's sells and exploits its women employees (Harvard Law, 2006). Jespersen sued Harrah's for gender discrimination under Title VII of the Civil Rights Act of 1964, arguing that the appearance standards imposed unequal burdens on women and required women to conform to gender stereotypes. Summary judgment was granted for Harrahs by The United States District Court for the District of Nevada finding that although women were required to wear makeup, men were required to have short hair, so the burdens imposed by the policy were equal. The district court also held that, under Ninth Circuit precedent, appearance standards were not impermissible gender stereotyping. Chief Judge Schroeder also concluded that the policy did not constitute illegal gender stereotyping because Jespersen had failed to produce any evidence beyond her "subjective reaction" that the policy was adopted based on a gender stereotype. (Harvard Law, 2006)

Literature Review

Title VII of The Civil Rights Act of 1964 prohibits employment discrimination based on race, color, religion, sex and national origin. It shall be an unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual??™s race, color, religion, sex, or national origin, or to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee. (Equal Employment Opportunity Commission)

The court did not hold that the makeup policy was immune from a Title VII challenge. Instead, the court only held that on this record, Jespersen had failed to present evidence sufficient to survive summary judgment (Harvard Law, 2006).

Harrah's Beverage Department Image Transformation Policy contained gender specific requirements. Men had to keep short hair and trimmed fingernails. Women were required to have their hair teased, curled, or styled every day. In addition, the women had to wear makeup and meet with image consultants and wear their makeup as the consultants directed. Jespersen felt degraded and demeaned by the policy, and claimed that the makeup policy prohibited her from doing her job. The policy affected her self-dignity and took away her credibility as an individual. Because of this, Jespersen refused to wear makeup. She was effectively terminated. (Harvard Law, 2006)

In addition to economic burdens not shared by men, women at Harrah's face unequal physical burdens. Makeup can cause allergic reactions, and most seriously, according to the Cancer Prevention Coalition, cosmetics "can be cancer risks". The simple act of wearing makeup can cause these chemicals to enter the bloodstream. These risks are a severe burden imposed by Harrah's makeup policy. Because only women are subject to these risks, Harrah's policy imposes unequal burdens. Jespersen was subjected to daily requirements to look attractive. Being told every day that she was not attractive enough for work, despite having proven herself an excellent employee for twenty years, Jespersen felt a burden not shared by the men with whom she worked. (Harvard Law, 2006)

Over the years, societal attitudes towards the use of makeup have evolved. Women who wear makeup are often perceived as beautiful. In the past, however, 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 (Bible, 2007). When the role of women underwent rapid social change, makeup became more popular. People also came to believe that makeup would reveal the good and beautiful woman inside. In some cases employers use it to screen women into and out of the workplace. Certain jobs require the employees to be appealing to the eye. It is, of course, one thing to choose to wear makeup at work and another to have to do so.

Discrimination based on gender (or sex) is a common civil rights violation that takes many forms, including sexual harassment, pregnancy discrimination, and unequal pay for women who do the same jobs as men. Unfortunately, most U.S. women are all too familiar with all of these inequalities (FindLaw, 2017). Despite the passing of time since laws such as Title VII or the Equal Pay Act were enacted, gender discrimination in the workplace continues to be a major problem. Gender discrimination was not proven in this case. Jespersen was not subjected to sexual harassment, nor did she earn less money than her male co-workers. The company amended its employee policy and requirements were made for the men and women. Both sexes had to be well groomed, appealing to the eye, and have a firm and toned body. In addition, the women were required to wear makeup.

Analysis

The district court granted summary judgment for the employer, holding that the employer's policy did not constitute sex discrimination because it imposed equal burdens on both sexes. The employee appealed, arguing that the makeup requirement imposed innumerable tangible burdens on female employees that male employees did not share because cosmetics could cost hundreds of dollars per year and putting on makeup required a significant investment in time. The judgment of the district court is affirmed.

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