30 Pages Posted: 23 Oct 2007
This article is based on a lecture - The Jack Pemberton Lecture on Workplace Justice sponsored by the University of San Francisco Law School - which the author delivered in San Francisco in March, 2007. The article argues that the Ninth Circuit's 2006 en banc decision, Jespersen v. Harrah's Operating Co., presented a doctrinal framework for analyzing worker challenges to employers' sex-based dress, grooming, and appearance codes that has no statutory support in Title VII of 1964 and its amendments in the Civil Rights Act of 1991. Jespersen held that Harrah's policy of requiring all female bartenders to wear certain makeup on the job was not discriminatory on its face because there was no evidence that the policy was based on "sex stereotypes." In addition, the court ruled that, in the absence of evidence of the costs in time and money of buying and applying makeup, a mandatory makeup policy for women does not discriminate on the basis of sex by placing an "unequal burden" on female workers. The vision of gender equality underlying the court's analysis in the case reinforces the cultural devaluation of female workers' competence and intelligence by allowing employers to enforce gendered appearance norms.
The article examines how the court's "sex stereotyping" and "unequal burdens" doctrines have strayed from the statutory language of federal antidiscrimination law, as well as relevant Supreme Court interpretation of that language. The resulting judge - made law in Jespersen rests on a crabbed vision of gender equality that undermines the past achievements of Title VII - which had expanded work opportunities for women in traditional male jobs like bartending - by making it very difficult for women to challenge sex-based grooming policies. In particular, the article suggests that the cost of collecting reliable evidence on the cost and time of an employer's grooming rules, as well as the narrow notion of the burdens of gendered grooming requirements, will discourage challenges to such policies under the "unequal burdens" doctrine. More promising (but still costly) might be Title VII challenges under the "sex stereotyping" doctrine that draw on the wealth of social science evidence about how sex stereotypes and sex roles can affect perceptions about the competence, intelligence, prestige, and status of female workers. The article concludes that the Jespersen decision is likely to contribute to the "dumbing down" and "sexing up" of women's work in America and that the harms flowing from the court's narrow vision of gender equality are likely to fall on vulnerable groups of workers such as adolescent females and older men and women who are not "old enough" to be protected by the Age Discrimination in Employment Act.
Keywords: discrimination, sex stereotypes, gender stereotypes, sex roles, equality, Title VII, grooming codes, civil rights, women and work, labor, employment
Suggested Citation: Suggested Citation
Avery, Dianne, The Great American Makeover: The Sexing Up and Dumbing Down of Women's Work After Jespersen v. Harrah's Operating Company. University of San Francisco Law Review, Vol. 49, pp. 1-29, 2007; Buffalo Legal Studies Research Paper No. 2007-019. Available at SSRN: https://ssrn.com/abstract=1023702