All women must wear make-up

[richalisoviejo]

9th Circuit Court Ruled.

Miss “blank” worked as a bartender for a large hotel chain in Ca., for nearly ten years and received exemplary performance evaluations. The hotel chain encouraged female beverage servers to wear makeup, but it was not required.

Miss “blank” briefly tried wearing makeup but later stopped because she felt it "forced her to be feminine" and to become "dolled up" like a sex object.

The company changed its appearance standards in, announcing the goal of a "brand standard of excellence." It required female bartenders to use nail polish and wear their hair down and either "teased, curled or styled." Later the rule was amended to add makeup, which the hotel chain defined as "foundation/concealer and/or face powder, as well as blush and mascara," plus lip color.

Miss “blank” was terminated in July after refusing to comply with the makeup requirements. A district court granted summary judgment for hotel’s, ruling that its policy did not impose unequal burdens on the sexes.

Congress passed Title VII of the Civil Rights Act of 1964 which prohibits employment discrimination based on race, color, religion, sex, or national origin.

The Ninth Circuit ruled that the plaintiff did not state a claim under Title VII that her employer's requirement that female employees wear make up as a condition of employment was NOT sex discrimination in violation of Title VII.

IMO the employer made an employment decision based on GENDER and acted on the basis of a belief that a woman cannot successfully mix, pour, or sell drinks to customers unless she wears make up.

Do you believe this is unlawful sex stereotyping?

 

[Yvonne G]

Yes, I believe it, however, look at Hooters. If that's not sex discrimination, I don't know what is.

When I first started with the Phone Co, way back in the 1960's women were not allowed to wear trousers or jeans.

We've come a long way baby!

If the women have to wear make-up then the men should have to also.

Yvonne

 

[richalisoviejo]

Yes, I believe it, however, look at Hooters. If that's not sex discrimination, I don't know what is.

When I first started with the Phone Co, way back in the 1960's women were not allowed to wear trousers or jeans.

We've come a long way baby!

If the women have to wear make-up then the men should have to also.

Yvonne

Exactly! The United States Supreme Court said:

"We hold that when a plaintiff in a Title VII case proves that her gender played a motivating part in an employment decision, the defendant may avoid a finding of liability only by proving by a preponderance of the evidence that it would have made the same decision even if it had not taken the plaintiff's gender into account."

Apply the above stated rule of law (the Supreme Law of the Land) to an employer's decision that all female employees must wear make up or be fired. The employer then fires a woman because she refused to wear make up. Is it possible for an employer to prove he would have made the same decision (to fire the woman) even if it had not taken the plaintiff's gender into account?

An interesting read: PRICE WATERHOUSE v. HOPKINS, 490 U.S. 228 (1989).

Citation of Authority:

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=490&invol=228

We don't need to AMEND the Constitution in order to extend protections to women against employment discrimination. We just need to enforce the laws that are on the books. The employer's requirement that female employees wear make up is unlawful disparate treatment based on gender and unlawful sex stereotyping wherein the employer falsely believes that women who wear make up are superior employees to women who do not wear make up.

 

[chadk]

Sounds like a dress code issue. What if Disney fired "Cinderella" because she wanted to wear baggy jeans and a butch hair cut. They have a theme and a dress code. It is a private business. If I don't like it, I don't seek employment there. If I don't agree with my boss on something like that, I expect the possibility of being fired.

I'd be happy if hooters and those bikini espresso stands shut down. But they are legit businesses I guess. I don't give them my money. But if others want to, it is their right I guess. And if they have dress codes and such, that is their business. Sure, anyone can make an espresso, but most of us wouldn't sell as many and look as good in a bikini.... Who do you go after next? Playboy? JC Penny catalogues? Hollywood? If they have standards, dress codes, etc for models, actresses, or other types of workers - is that illegal? Apparently the courts don't think so.

 

[richalisoviejo]

Federal law trumps state law. Apparently you didn’t read PRICE WATERHOUSE v. HOPKINS, 490 U.S. 228 (1989):

Perhaps wearing make up is a BFOQ for a clown, but not a BFOQ for a female bartender. The two are not similarly situated. But for the Ninth Circuit's use of the "unequal burdens" test, this disparate treatment case would be no different that the U.S. Supreme Court disparate treatment case wherein Hopkins was able to show that an employment decision was based on unlawful gender discrimination.

 

[chadk]

If the employer has a bone fidae reason to require the dress code - such as theme (even if that theme is 'sexy' as in Hooters...), and as long as they don't put a greater dress code burden on one gender over another, then the courts will rule in favor of the employer.

 

[richalisoviejo]

And if there is no requirement for men?

Sex discrimination in the workplace comes in many guises. In a most basic form, it involves outright exclusion of women, solely by reason of their sex. Even where women have gained access to the workplace, sex discrimination may persist in other forms, for example, through identification of particular jobs as “man-only” or “woman-only” jobs, through perpetuation of a glass ceiling that ensures women will only rise so high on the corporate ladder, or through the unwritten establishment of two sets of rules for success: for men, based on performance, and for women, based on appearance.

 

[katesgoey]

Hopefully, it will be appealed so that the federal test will be applied more aptly and the 9th Circuit's thinking redirected since requiring makeup was NOT a requirement for men, (therefore it is a greater dress code burden on one gender), and it is not to effect a disney character but to achieve a controlling effect over a gender based issue (hair styling/makeup). I wonder what this company would have done if a male employee started styling his hair femininely and wearing makeup - if they would have objected and he refused to change the style and take off the makeup, and then they fired him....would he not have a claim? This is a hotel chain for pete's sake and they want to focus on hair and makeup?? The Price Waterhouse case focuses on the employer's criticism of plaintiff's behavior rather than appearance, but points to the problem of stereotyping genders - I stress that the hotel chain was not trying to evoke or effect a character (like a Playboy Bunny or Cinderella), they were targeting only women to impose specific requirements beyond normal grooming, not to mention such a requirement could have led to health issues....(some people are allergic to makeup). Sigh.

 

[chadk]

No. It is just like most airlines that require a certain dress code for male vs female flight attendants. Have you even seen a female flight attendant with no makeup?

It isn't that they have to require the exact same thing for men as women. The law just says they need to have the same level of burden. For example, men wearing ties, but not the women. As long as the requirements are in line with society in general (basic differences in how men vs women dress in our society), then having a dress code for your men and women that is different is fine. At least that is how the courts rule on this usually.

 

[bettinge]

Welcome back Rich/Mark, I like the debates you bring! What would you like to be called on this forum?

And I have studied "PRICE WATERHOUSE v. HOPKINS, 490 U.S. 228 (1989):".....................not




Forget that "other forum"! And again, good to see your posts!

 

[Jacqui]

To me, a major issue is the dress code changed WHILE she was already working there. If it had been in place before she was hired and she then took the job knowing she needed maqkeup, that I could see as a reason she could be terminated. I for one, have never worn makeup and think requiring it is a violation of my rights, unless ALL employees must also wear it.

Of course, I wish these job place rights also included rights of folks that are fat like me. My boss is making me take a sleep apnea test that I see no need for and is not required by DOT for my job. The company does not pay for the test. Only people of a certain BMI are being forced to do the testing.

 

[richalisoviejo]

Thanks bettinge!

And Sandy you nailed it! And Jacqui have your doctor write a letter to your employer stating the sleep apnea test is not needed. If your boss is smart he’ll back off.

Below is the interpatation of Title VII by the U.S. Supreme Court which is revelent to this case.

The critical inquiry, the one commanded by the words of 703(a)(1), is whether gender was a factor in the employment decision at the moment it was made.

Our interpretation of the words "because of" also is supported by the fact that Title VII does identify one circumstance in which an employer may take gender into account in making an employment decision, namely, when gender is a "bona fide occupational qualification [(BFOQ)] reasonably necessary to the normal operation of th[e] particular business or enterprise." 42 U.S.C. 2000e-2(e). The only plausible inference to draw from this provision is that, in all other circumstances, a person's gender may not be considered in making decisions that affect her. Indeed, Title VII even forbids employers to make gender an indirect stumbling block to employment opportunities. An employer may not, we have held, condition employment opportunities on the satisfaction of facially neutral tests or qualifications that have a disproportionate, adverse impact on members of protected groups when those tests or qualifications are not required for performance of the job.

In saying that gender played a motivating part in an employment decision, we mean that, if we asked the employer at the moment of the decision what its reasons were and if we received a truthful response, one of those reasons would be that the applicant or employee was a woman. 13 In the specific context of sex stereotyping, an employer who acts on the basis of a belief that a woman cannot be aggressive, or that she must not be, has acted on the basis of gender, though the parties do not overtly dispute this last proposition, the placement by Price Waterhouse of "sex stereotyping" in quotation marks throughout its brief seems to us an insinuation either that such stereotyping was not present in this case or that it lacks legal relevance. We rfeject both possibilities.

 

[chadk]

To me, a major issue is the dress code changed WHILE she was already working there. If it had been in place before she was hired and she then took the job knowing she needed maqkeup, that I could see as a reason she could be terminated.

Actually a business is able to change their dress code at anytime. As long as it does not violate law as already layed out, there is no problem with changing it at anytime.

---

It's about dress code rich. Not gender...

 

[katesgoey]

To me, a major issue is the dress code changed WHILE she was already working there. If it had been in place before she was hired and she then took the job knowing she needed maqkeup, that I could see as a reason she could be terminated.

Actually a business is able to change their dress code at anytime. As long as it does not violate law as already layed out, there is no problem with changing it at anytime.

---

It's about dress code rich. Not gender...

---

If it is only about dress code, then where is the equivalent requirement for men? A tie would be likened to a requirement of a scarf around the neck for women, but a tie cannot be likened to a requirement of specific makeup and/or hair styling. Price Waterhouse basically states that the law allows an employer to make rules, but the rules have to be within the framework of the law, cannot be designed to favor one gender over another, etc.... And yes, I have seen airline stewardesses without makeup Okay, I'm out...thanks for the fun "debate"

 

[chadk]

Here are 2 examples I dug up that show why you can have different requirements for men and women and still be within the law.


+++++++++++++++++++++++++
Sex discrimination claims typically are not successful unless the dress policy has no basis in social customs, differentiates significantly between men and women, or imposes a greater burden on women. Thus, a policy that requires female managers to wear uniforms while male managers are allowed to wear "professional dress" may be discriminatory. However, dress requirements that reflect current social norms generally are upheld, even when they affect only one sex. For example, in a decision by the Eleventh Circuit Court of Appeals in Harper v. Blockbuster Entertainment Corp., 139 F.3d 1385 (11th Cir. 1998), the court upheld an employer’s policy that required only male employees to cut their long hair.

++++++++++++++++++++++++++++

Discrimination Based on Sex

Courts have found that dress codes can be different for men and women, but cannot be less favorable to one gender. As long as the dress code is consistent with social norms and customs, does not differ significantly for men and women, and does not place a greater burden on one sex, then a dress code will usually be found not to be discriminatory.

Example of a rule involving a social norm:

A rule requiring men to wear their hair above their collar is not discriminatory, even if there is not a similar rule for women.

Examples of rules involving equal burdens on men and women:

A dress code requiring men to wear a shirt with a collar and a tie is not discriminatory, as long as women are also required to dress with a similar measure of formality or professionalism.

In Jespersen v. Harrah’s Operating Co., Inc., 392 F.3d 1076 (9th Cir. 2004), the Court determined that a dress code that required women to wear make-up and nail polish and style their hair was not discriminatory. Males were required to have short hair and trimmed fingernails. The Court did not believe that there was evidence to show that the use of make-up cost more or took more time than the grooming standard that the employer imposed on male employees.
+++++++++++++++++++

 

[katesgoey]

I know I said I was out...but....Chad - you are citing the same circuit court (9th) that we are debating here. The issue is one, in the debated case, where the plaintiff did not offer enough evidence to substantiate the claim - the court in Jesperson does not argue that the facts could not be actionable: "We agree with the district court and the panel majority that on this record, Jespersen has failed to present evidence sufficient to survive summary judgment on her claim that the policy imposes an unequal burden on women. With respect to sex stereotyping, we hold that appearance standards, including makeup requirements, may well be the subject of a Title VII claim for sexual stereotyping, but that on this record Jespersen has failed to create any triable issue of fact that the challenged policy was part of a policy motivated by sex stereotyping. We therefore affirm." There is a distinction to be made there regarding dress codes rising to sexual stereotyping or not and I maintain that it was a matter of failure to submit the evidence (makeup and hair styling for women generally does cost more and takes a heck of a lot more time than a man buying and putting on a tie) and not that such a dress code is not sexual stereotyping.

(Jespersen: "rules thus provide that a plaintiff may not cure her failure to present the trial court with facts sufficient to establish the validity of her claim by requesting that this court take judicial notice of such facts. See id.; see also Fed. R. Civ. Proc. 56(e). Those rules apply here. 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. This would not be appropriate. See, e.g., Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ("[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party."); Steckl v. Motorola, Inc., 703 F.2d 392, 393 (9th Cir.1983) ("A party opposing a summary judgment motion must produce specific facts showing that there remains a genuine factual issue for trial and evidence significantly probative as to any material fact claimed to be disputed.") (internal quotation marks and alteration omitted); cf. Lindahl v. Air France, 930 F.2d 1434, 1437 (9th Cir. 1991) (In a Title VII case, "a plaintiff cannot defeat summary judgment simply by making out a prima facie case.").

(sorry I don't know how to change the font to make mine look as neat as yours). Anyway, this case failed for the plaintiff because of a technicality, not because it is okay to stereotype.

Okay....I'm really, really, really out. Thanks!

 

[chadk]

Sandy - it was more than a 'technicality'. It was the relevant facts required to rule on the case. Had they provided the information needed, it still may not have been enough to show discrimination. We don't know what the dress code was for the men and no analysis was done to show that one side was much more burdened than the other. So without that information, the case, and this dicussion must end there...

 

[richalisoviejo]

but cannot be less favorable to one gender.

In a nutshell.

Elysa J. Yanowitz VS, L’oreal USA Inc.

http://www.morelaw.com/verdicts/case.asp?n=A095474&s=CA &d=23805

Plaintiff Elysa Yanowitz was a regional sales manager for defendant L’Oreal USA, Inc. (L’Oreal), a cosmetics and fragrance company. A male L’Oreal executive ordered Yanowitz to fire a female employee in her region because the executive found the employee insufficiently attractive. Yanowitz was asked to get him someone “hot” instead. She asked for a better reason. The executive and another executive, who was Yanowitz’s immediate supervisor, subjected her to heightened scrutiny and increasingly hostile evaluations over the ensuing months. Within four months, Yanowitz went on stress leave, and her position was eventually filled.

---

Okay....I'm really, really, really out. Thanks!

No thank you! Very good points!

Darlene Jespersen was also discriminated against because she was a lesbian.

 

[chadk]

but cannot be less favorable to one gender.

In a nutshell.

Elysa J. Yanowitz VS, L’oreal USA Inc.

http://www.morelaw.com/verdicts/case.asp?n=A095474&s=CA &d=23805

Plaintiff Elysa Yanowitz was a regional sales manager for defendant L’Oreal USA, Inc. (L’Oreal), a cosmetics and fragrance company. A male L’Oreal executive ordered Yanowitz to fire a female employee in her region because the executive found the employee insufficiently attractive. Yanowitz was asked to get him someone “hot” instead. She asked for a better reason. The executive and another executive, who was Yanowitz’s immediate supervisor, subjected her to heightened scrutiny and increasingly hostile evaluations over the ensuing months. Within four months, Yanowitz went on stress leave, and her position was eventually filled.

---

Okay....I'm really, really, really out. Thanks!

No thank you! Very good points!

Darlene Jespersen was also discriminated against because she was a lesbian.

---

OK, in your first exmaple - that is apples and orange. In one case, we are talking about a dress code that the employer feel is essential to their business. In your case, the manager did a terrible job in defining a LEGAL dress code standard in writing to all employees, applying it fairly, and holding everyone to it. If you do all those things, you will probably be in good standing.




What does being a lesbian have to do with anything? I know plenty of lesbians that are attractive and\or choose to wear makeup...

 

[richalisoviejo]

Your arguments always negaite each other, but I always expect that from anyone wearing blinders.

In a disparate TREATMENT case, Hopkins was able to show that she was not promoted to a partner because her employer used sex stereotypes and told her that she should "walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry."

Likewise, in the Ninth Circuit, the Jespersen case was also a disparate TREATMENT case. She was NOT required to put forth a disparate IMPACT case nor was she required to establish the negative proposition that she would not have been subject to the decision had she been men nor was she required to meet an "unequal burdens" test.

This was a disparate TREATMENT case; not a disparate IMPACT test. And yet, the Ninth's Circuit's application of an "unequal burdens" test turned this disparate treatment case into a disparate impact case and then took the BFOQ exception and watered it down into meaningless puddle.

Title VII History concerning prohibition of discrimination based on SEX.

Sex Discrimination

http://www.eeoc.gov/abouteeoc/35th/1965-71/shaping.html

EEOC had expected to receive very few charges of sex discrimination in its early years. It had assumed that the vast majority of charges would allege race discrimination because Title VII had been debated and passed in a racially-tense environment and most of the Congressional and media attention had focused on the problem of race discrimination. It was a surprise to find that fully one third of the charges (33.5 percent) filed in the first year alleged sex discrimination. After all, the prohibition against sex discrimination had been added as a last minute amendment by Congressman Howard Smith of Virginia who opposed the civil rights legislation and thought that Congress would reject a bill that mandated equal rights for women.


Indeed, most supporters of Title VII initially opposed the Smith amendment because they, too, thought that it would doom the legislation. The amendment stayed in because female members of Congress argued that there was a need to protect equal job opportunities for women. Congresswoman Katherine St. George of New York argued that she could think of "nothing more logical than this amendment" and that while women did not need any special privileges "because we outlast you, we outlive you, . . . we are entitled to this little crumb of equality.

The need for this "little crumb of equality" was dramatically illustrated by the unexpectedly large number of sex discrimination charges filed in that first year.

Now excuse me as I have a late dinner date with a beautiful nurse.