Painted ladies

January 5, 2005 7:25 AM

Can your employer require you to wear makeup and follow the dictates of an image consultant? Yes, according to a panel from the 9th Circuit Court of Appeals. In Have They Ever Shared a Bathroom with a Woman? Workplace Fairness discusses the recent ruling and the historical background of bartender Darlene Jesperson's challenge to Harrah's "personal best" policy on the basis that it is discriminatory to female employees.
posted by madamjujujive (48 comments total)

Can't find a way to permalink, but the article is dated Monday January 03, 2005, for future reference.
posted by madamjujujive at 7:28 AM on January 5, 2005

Because two men on a three-judge panel of 9th Circuit judges says it isn't, in an opinion which defies all logic in a world comprised of more females than males.

A very balanced article.
posted by orange clock at 7:31 AM on January 5, 2005

I would go one step further and submit that it is the height of totalitarianism for Harrah's to require its bartenders to wear uniforms, especially if they are good bartenders, like Jesperson was.
posted by esquire at 7:38 AM on January 5, 2005

Oh, Jesus. Can we stop with the sarcasm and pretend we read the article, please? This wasn't just "wear makeup" which to some degree I can understand. There's a dress code, etc. According to the case, Harrah's required her to go to a makeover consultant, and then do herself up every day according to a picture someone made of her makeover.

That's ridiculous. Greeters at restaurants are generally young, attractive women, and I'm sure are required to look presentable. I sincerely doubt they're handed a headshot book and told "this is how you're going to look on Wednesday."

If she was a showgirl, in which an aspect of her actual job was to wear a costume and dress her face to exact specifications, I could understand Harrah's putting that in her contract. She's not a performer; her job is to serve drinks. For a bartender, there's no reason to go beyond wearing a uniform and looking presentable to a degree in which you don't turn off possible sales.
posted by XQUZYPHYR at 7:47 AM on January 5, 2005

big difference, esquire. it's kinda like required extra uniform accessories for all black bartenders (think white gloves with individually glued sequins each night) ... accessories that take about an hour to put on.

reading the decision now ...
posted by mrgrimm at 7:51 AM on January 5, 2005

How many pieces of flair?
posted by veedubya at 7:59 AM on January 5, 2005

Can your employer require you to wear makeup

That depends. Are you employed by Ringling Brothers?
posted by jonmc at 8:01 AM on January 5, 2005

For a bartender, there's no reason to go beyond wearing a uniform and looking presentable to a degree in which you don't turn off possible sales.

I'd have to agree. NTM, I gotta wonder how this is an effective idea for the company. I doubt anyone ever decided to switch sports bars because the tender's lip gloss wasn't up to snuff.
posted by jonmc at 8:14 AM on January 5, 2005

Bizarre.
posted by agregoli at 8:20 AM on January 5, 2005

Maybe they should just require all male customers to have several stiff drinks, then they won't notice the imperfect makeup.
posted by furiousxgeorge at 8:22 AM on January 5, 2005

It goes way beyond make up too!

Employees can't get different sized uniforms if they gain weight. Women who have babies must fit into their uniforms they wore previously within 12 weeks of giving birth. Women must paint their nails one of 4 colors. They may have to curl and style their hair everyday. They must always have lipstick on. I mean, this is crazy. It is just WRONG. And it is an undue burden on women. Especially since this crap doesn't apply to men. It's wrong and I hope to god she wins and takes harrah's for millions.

I understand them saying you have to be clean and have to cut your nails and such, but this goes beyond the pale.
posted by aacheson at 8:31 AM on January 5, 2005

My father always told me that there are two kinds of women: those who don't need to wear make-up, and those it won't help anyway.
posted by Nematoda at 8:32 AM on January 5, 2005

I don't understand why everyone seems so surprised.

Heavily themed entertainment establishments tend to treat their employees as cast members, not bartenders and hosts. This is true at Walt Disney World, and it's true at Harrah's.

I'm going to have to save my outrage for another day.
posted by mosch at 8:43 AM on January 5, 2005

Funny, my father always told me there were two kinds of men: those who are assholes and those who are nice guys. Obviously the Harrah's management team has a preponderance of the former. Too bad there's no makeup that masks assholeness ;-)
posted by madamjujujive at 8:43 AM on January 5, 2005

Employees can't get different sized uniforms if they gain weight.

I wonder what would happen if they lost weight?
posted by jacquilynne at 8:52 AM on January 5, 2005

It's the 9th Circuit Court of Appeals: the court that has more than earned its reputation as a "runaway court." It has by far the highest overrule record since the federal judiciary was expanded in 1978. In one year, the 1996-1997 session, the Supreme Court reversed 27 of the 28 cases it considered from the 9th Circuit. This number is all the more arresting upon further examination, say both conservative and liberal legal analysts, because 17 of the cases were overturned by unanimous decisions. a reversal rate of 86 percent.
posted by fourstar at 8:54 AM on January 5, 2005

Wow. That's sickening. Does anyone else ever get the feeling that America is traveling back in time? Required makeup is madness.

Anyway, I don't know why they're complaining about her--she's got the "fun professional" thing down pat without the makeup. business in the front, party in the back!


c'mon, someone was going to point that out eventually . . .
posted by schroedinger at 9:09 AM on January 5, 2005

One thing some of you seem to have missed is that theatrical professionals GET PAID for the time they are required to spend putting on make-up.

If she's being paid for the extra hour she spends doing this each day, I have no problem with it. But I seriously doubt she is, which means they're demanding additional unpaid work from her.
posted by kyrademon at 9:31 AM on January 5, 2005

Harrah's makes its money on the tables, not on the booze. As such, Harrahs might consider the waiters and waitresses part of the entertainment atmosphere. Further, if the employment guidelines have requirements you refuse to meet, you always have the option of working somewhere else.

That said, I think Harrah's made a bad decision: according to the article,

[...] Jespersen’s supervisors commented that she was “highly effective,” that her attitude was “very positive,” and that she made a “positive impression” on Harrah’s guests. Harrah’s customers repeatedly praised Jespersen on employee feedback forms, writing that Jespersen’s excellent service and good attitude enhanced their experience at the sports bar and encouraged them to come back.

I guess their altitude was, it's more detrimental having someone stir things up than to have a good, effective employee. As a result, they've only given themselves more headaches than if they'd just sucked it up.

A linked website commenting on the case suggests that Jespersen's crime was her "refusal to paint herself up like a whore," suggesting (as many others here have reiterated) that Harrah's has been sexually discriminating against female employees. But later in the same article, it gives this anecdote:

Back in the 1970s, a friend of mine had a roommate who would eat nothing but a solitary boiled hot dog for dinner. No bread, no condiments, not even a cracker. The big guy was under extreme pressure to shed some pounds or lose his Harrah's casino management job. But management doesn't really care about your health.

Sounds to me like they shit on all their employees.
posted by Civil_Disobedient at 9:34 AM on January 5, 2005

Employees can't get different sized uniforms if they gain weight.

I wonder what would happen if they lost weight?

Of course, the policy does allow female employees to get new, better-fitting uniforms after they've had breast implants, as that's considered "positive body enhancement."
posted by Oriole Adams at 9:37 AM on January 5, 2005

This is ridiculous. I hope she wins. I understand the need for dress code and appearance provisions in certain contracts, but this sounds like they are trying to weed out the existing staff. Well, staff that may balk at the extra effort needed to match an expected image put forth by the "image consultant".

It's just plain wrong, and Harrah's should be taken to task before others decide it's just "good company policy".

For a humourous aside regarding the 9th Circuit, check out this case. (PDF)
posted by purephase at 9:37 AM on January 5, 2005

I think this is horrific; as long as an employee is clean, I don't think employers should have any right whatsoever to dictate personal appearance choices like makeup, nail polish, or hairstyle. I always thought the Disney appearance stuff was terrible, but this is really going overboard. She is not trying to look like Snow White, she is trying to mix drinks. The other idea here, that some consultant is going to come in and say, you have to look like "this", including how he or she thinks you should do your hair, is completely bizarre. A haircut kind of carries over into your personal life, after all, you can't grow it back or cut it short every day at 5:00, and what right does/should an employer have to dictate that?

It's all very well to say, "then don't work there" but that misses the point. If this kind of thing is held up as legal, than it opens the door to any job requiring their employees to wear clown makeup on alternate Fridays, or any other insane idea they come up with, including the right to fire you if you gain weight. From there we get to companies who refuse to hire overweight people, or judge job candidates on their looks, gender or race, which used to be called discrimination and was frowned upon, but now is slowly being whittled away.

Oh, and yes, it's sexist as hell.
posted by mygothlaundry at 9:43 AM on January 5, 2005

Jesus. Makeup, mandatory veiling, whatever; it's all a part of the same thing, which is to do with controlling women's activities in the public sphere. The social regulation on female appearance is so pervasive that perhaps we don't even notice what a cultural pathology this is. I hope this woman is able to take this to a higher court and win a hefty settlement, and I have to say I'm disappointed with a number of the comments in this thread.
posted by jokeefe at 9:44 AM on January 5, 2005

Jesus. Makeup, mandatory veiling, whatever; it's all a part of the same thing, which is to do with controlling women's activities in the public sphere. The social regulation on female appearance is so pervasive that perhaps we don't even notice what a cultural pathology this is. I hope this woman is able to take this to a higher court and win a hefty settlement, and I have to say I'm disappointed with a number of the comments in this thread.

How exactly does this have anything to do with controlling a woman's activities in the public sphere? It has everything to do with regulating appearance during work hours, but there are similar standards for men: no jewelry, no facial hair, no long hair and trimmed nails. I'm not sure I'm a big fan of the ruling, but don't blow it out of proportion.

Also, since she lost the 9th circuit court battle, I believe it would have to move to 2nd level appellate court, which is the Supreme Court. I don't seem them taking this up anytime soon.
posted by SweetJesus at 10:00 AM on January 5, 2005

The nailpolish-extra bit just baffles me. Have handled a lot of ice with nailpolish on? It cracks off into the ice. eeeeeew.
posted by dabitch at 10:02 AM on January 5, 2005

SweetJesus - as mentioned above, a haircut certainly does change your appearance in the public sphere. And why on earth is it acceptable to make women wear makeup at work?
posted by agregoli at 10:06 AM on January 5, 2005

SweetJesus - as mentioned above, a haircut certainly does change your appearance in the public sphere. And why on earth is it acceptable to make women wear makeup at work?

Sometimes you have to make sacrifices in-order to fit into a certain culture. Case in point, I used to have long hair about 3 years ago when I was working as an intern for a software company. When I was laid off during the dot-com implosion, I got a job as a bartender. In order to get the job, I had to cut my hair, and I couldn't wear shorts to work anymore.

Was the hotel I worked for regulating my public activities (and I really fail to see how a haircut is a public activity), or was I making a conscious choice to adjust my appearance in order to become what they were looking for?

I think it's a shitty move to fire her, but I don't think this is some grand, sexist scheme by the Casino. Their rules effect men too, and I imagine that if I worked there and tried to grow a beard, they'd fire me too. So the question isn't "why is it acceptable to make women wear make up at work", the question is "is it acceptable to tell your employees what they can and cannot wear to work", and I think the answer is "Yes, within reason".
posted by SweetJesus at 10:19 AM on January 5, 2005

A friend of mine here at the office tells me of a time when she had to get a doctor's note to be excused from wearing make-up to the office. Of course, that was in the 70s, and we're supposed to have learned something about women's rights since then.
posted by jacquilynne at 10:28 AM on January 5, 2005

I agree with jokeffe's comments, by and large. Other draconian employment practices designed to enforce some ridiculous madison avenue notions of a sexualized feminine ideal have gone the way of the dodo and hopefully this one will too. Flight attendants at one time had girdle requirements - - an interesting read, and part of an intriguing larger site called the The Girdlezone.
posted by madamjujujive at 11:13 AM on January 5, 2005

I thought this sentece from § II, ¶ 5 of the decision was noteworthy:

"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, and exceed whatever “burden” is associated with ordinary good-grooming standards."

It says to me that the Personal Best policy is being compared against generally accepted good grooming standards, not just against the male and female provisions. By supporting the requirement to wear makeup, the decision asserts that makeup is a part of standard grooming practices for women, with which I disagree. I always considered makeup to be an addition to good grooming, and not part of the baseline.

I think the makeup requirement does leave the woman more open to at will firing because there are plenty more opportunities for her to be caught without fresh makeup in a shift. A man only has to get his hair trimmed once every few weeks, compared with multiple applications of lipstick during a shift. Furthermore, if a woman is regularly attending to her makeup, that's less time she's attending to her customers. This could come back to haunt her at review time.
posted by hoppytoad at 11:27 AM on January 5, 2005

Flight attendants at one time had girdle requirements

My aunt scooped ice cream at a Sander's restaurant in the late 1940s, and the female employees were required to wear girdles there, too.
posted by Oriole Adams at 12:09 PM on January 5, 2005

Good points, hoppytoad.

Their rules effect men too, and I imagine that if I worked there and tried to grow a beard, they'd fire me too. So the question isn't "why is it acceptable to make women wear make up at work", the question is "is it acceptable to tell your employees what they can and cannot wear to work", and I think the answer is "Yes, within reason".

Not being able to grow a beard is not the same thing as a woman having to spend an hour or more creating a hairstyle and make-up before work - not to mention the reapplying necessary during the day. What does a man have to do with his requirements - perhaps comb his hair during the day? Not the same thing at all, and sexist. Make-up is definitely not a part of good-grooming, and a woman does not need make-up to be considered presentable.
posted by agregoli at 12:11 PM on January 5, 2005

The 9th Circuit refused to take "judicial notice" of the fact that makeup application is an unequal burden on women, which means that they refused to accept it as common sense and demanded specific facts instead. So it sounds like the lawyers who argued this case at the trial level didn't do a good job at developing the facts. It should have been fairly easy to produce the hard evidence that the female grooming requirement was specifically more burdensome than the male requirement at Harrahs. But maybe if the 9th Circuit agrees to rehear the case en banc (meaning the entire court, rather than the 3-judge panel) they'll use a more generous standard of "judicial notice." Either that, or another Harrahs bartender can bring suit with a better laywer.
posted by insideout at 12:39 PM on January 5, 2005

How exactly does this have anything to do with controlling a woman's activities in the public sphere? It has everything to do with regulating appearance during work hours, but there are similar standards for men: no jewelry, no facial hair, no long hair and trimmed nails. I'm not sure I'm a big fan of the ruling, but don't blow it out of proportion.

The standards for men and women in this case are completely different; a makeup regime such as the one required here could easily take an hour just to apply in the morning (including spraying and styling hair) as well as continual maintenance during the day. Women often downplay just how much effort goes into keeping up hair and makeup, but it can take large amounts of time and attention. There's really nothing equivalent for men in our society at all.

How this links with the larger issue of controlling women's public roles is by codifying what is and is not an acceptable appearance in public-- that makeup is mandatory on pretty much any level where a woman might be a public figure of any kind. News anchor? Made up to the max, and it's not just to even out skin tone for the cameras, as it is for men. Politicians? Business executives? Same, and we're not even getting into plastic surgery here. Why does a woman like Hillary Clinton, powerful and wealthy, feel compelled to have an eyelift? It's not just personal vanity; it's deep sense of what's an appropriate way for women to look. And it isn't a conspiracy, it's a cluster of mostly unquestioned, often unexamined, and even invisible double standards that permeate our culture.

And yeah, I'm old enough to remember when girdles were required articles of clothing too-- you couldn't "leave home without them", a phrase which might suggest why this issue has to do with women's freedom to move in the public sphere-- but there were long and hard court battles fought so that it is no longer legal to fire flight attendants when they turn 30 or if they got pregnant or if they gained a few pounds, all of which used to be routine. Expecting an employee to conform to a standard of appearance above and beyond standard good grooming is another variation on this, one which I hoped had been dealt with twenty-five years ago.

And I'm not even going to go into "What did she expect, dressed like that?"
posted by jokeefe at 12:49 PM on January 5, 2005

Civil_Disobedient said: Further, if the employment guidelines have requirements you refuse to meet, you always have the option of working somewhere else.

It's important to note here that this woman has been black-balled from the gaming industry in Reno. The article doesn't say, but I would hazard to guess, that that would follow her to Tahoe, Vegas, and Laughlin. Sure, she could probably get a job slinging drinks at Applebee's (where she would likely be subject to some of the same grooming restrictions), but as the article pointed out, she wouldn't be making nearly the same money.

What if this article had been about a man who was required to wear a naturally grown beard of, say, 3-4 inches in length every day of his employment? Would we still be arguing that he should "get over it", or would we say it's his right to present his face to the world as he sees fit?
posted by vignettist at 1:04 PM on January 5, 2005

If part of your job description is applying what they call in the theater business "full slap", then you should at least be paid to do so.

I love makeup myself, and feel that I am not dressed for a professional occasion without it. That having been said, I understand that not all other humans feel this way.

there are similar standards for men: no jewelry, no facial hair, no long hair and trimmed nails.

I think that women employees would be delighted to follow those standards, or even an "women's adaptation" of them (unobtrusive jewelry, styled hair and trimmed nails--you know, like the mens' and womens' appearance standards in the armed services, police forces, etc.).

But the standards for men at Harrah's are "basic good, unobtrusive grooming" and for women are "full showgirl makeup". That's clearly inequitable.
posted by Sidhedevil at 1:19 PM on January 5, 2005

Makeup for women is not a baseline for being well-groomed, it's an extra. A full face of makeup when you don't need it does nothing to enhance your appearance; it makes you look fake. If you have sensitive skin, all that gunk could make it react badly. Makeup costs money, takes time to apply, and requires reapplication all day long. To force out a good worker after almost 20 years, who was praised that much by the customers, because she didn't want to apply a glamour-girl makeover every day to work there (that she never needed before) is simply crazy. What jokeefe said about the double-standards is true.

New mothers, even those who are nursing, are expected to fit in their uniforms within 12 weeks of giving birth.

Okay, out of everything else that pissed me off about this employer's rules (and there was plenty), this is the part that threw me completely. The guideline in most pregnancy books is that your body needed nine months to grow the baby and it'll need at least nine months to get back to around where you were pre-pregnancy. If you're breastfeeding your body keeps some fat reserves on and you may retain some extra pounds until you're done nursing (easily a year or longer). It is NOT recommended to diet so fast when you're breastfeeding, otherwise your baby might not get the nutrients it needs to grow healthy.

To stipulate something like that is dangerous and shows a thorough disregard on how women's bodies work. How many women can go the next 20 years with the same fit, the same body shape, as they had when they were 20? Women's bodies change. Your figure might not be the same after having a child even when you do get back down to pre-pregnancy weight. Are they going to refuse to fit you for another uniform (or fire you!) because you have childbearing spread in the butt or hips? Or your breasts got larger or smaller? Or your belly isn't flat anymore? What if you go on birth control and gain 15 pounds? You can't lose that weight, it's hormonal.

Ridiculous. And absolutely sexist. I know the men have to maintain their hiring weight/body shape too - I don't agree with that either - but men's clothing and sizing is much more forgiving of weight gain or body changes than women's is, not to mention there's no chance they'll go through pregnancy. These employer rules are wrongheaded all around but they definitely affect the women they employ more.
posted by Melinika at 3:10 PM on January 5, 2005

XQUZYPHYR: There's no platonic job of "bartender," of which Jesperson is some great example of the form (according to the article and appellate decision I am pretending to have read). She is a Harrah's employee, and they happen to want the persons who pour drinks in their employ to conform to their standards of appearance.

If they wanted, they could call their bartenders "showgirls" or "supermodels" or whatever, even if it made the DOL crazy, and tell their drink-pourers to wear feather-hats. There wouldn't be a legal problem unless it was interfering with an employment contract.

If she wants to be just a bartender and not one with makeup required by her job, she can do it for another casino, no?
posted by esquire at 3:11 PM on January 5, 2005

MrGrimm: There would be a big difference if the standards were applied in a racially discriminatory manner, but that's not what's happening here, right?
posted by esquire at 3:13 PM on January 5, 2005

The reversal rate of 86% is not that surprising. The Court doesn't typically grant cert on cases for purposes of affirming, after all.
posted by esquire at 3:14 PM on January 5, 2005

Hoppytoad: so what is your solution?

1. have men wear makeup, too, so that they are equally burdened?

2. prevent Harrah's from imposing any sort of appearance regulation that could potentially burden one sex more than it burdens the other?

Think about how far-reaching the implications could be w/r/t point #2. Men and women have a lot of differences between them, you know.

If Harrah's just lost its best bartender because of stupid policies, then it serves them right. But the outrage and calls for judicial intervention here are a little overmuch.
posted by esquire at 3:23 PM on January 5, 2005

Harrah's is probably right in thinking that a woman wearing a lot of makeup (who's old enough to have been working there for 20 years) is a more profitable addition to the casino than one who wears no makeup at all.

It's not necessarily a problem with the company per se. It's an attitude that permeates society--the people who gamble and drink there need to rethink their attitudes about what is attractive, and that's going to take a lot of time.
posted by Jeanne at 3:34 PM on January 5, 2005

esquire, again I point out that she was black-balled from the industry.

What if you were somehow never allowed to again practice law in D.C., VA, or MD? Sure, maybe you could practice in New York or Chicago, assuming the folks who black-balled you didn't have connections there. But you know your reputation as a trouble-maker will precede you, no matter how good your track record is workwise. And besides, what if you don't really want to move and leave all of your friends and family?

There has been a true burden placed on this woman for not conforming to these standards. And as she has pointed out (as well as others in the thread) they are burdensome standards, as they relate to this particular job function.
posted by vignettist at 4:14 PM on January 5, 2005

If she wants to be just a bartender and not one with makeup required by her job, she can do it for another casino, no?

Nope. It doesn't work that way. From the article:

Jespersen has been blackballed from the gaming industry--hardly insignificant when you're a unskilled worker in Reno, and now works in retail.
posted by Alison at 4:21 PM on January 5, 2005

Flight attendants at one time had girdle requirements

I'll see your girdles, and raise you one: flight attendants in the 60s had to be single. Make of you will of that nugget of information.

Jespersen has been blackballed from the gaming industry--hardly insignificant when you're a unskilled worker in Reno, and now works in retail.

That sucks, but it's my understanding that most casinos collude with each other, so I'm not at all surprised. Personally I don't think this has anything to do with pure sexism; I think there are two factors at work here. The first is, in Reno, you do what the casinos say. They want everyone to understand who's in charge, and "uppity" employees will not be tolerated.

A second, more insidious factor came to mind when I read that she had been working in the industry for over 20 years. My first thought was, "Damn, that's an experienced employee! Why would they fire her?" Of course, it's obvious why they'd try and push out the older employees -- to open spots to fill with younger, more attractive employees.
posted by Civil_Disobedient at 4:56 PM on January 5, 2005

MrGrimm: There would be a big difference if the standards were applied in a racially discriminatory manner, but that's not what's happening here, right?

what's the difference between racial and gender discrimination? i didn't think there was any.

still haven't read the full decision (busy day), but hoppytoad's excerpt is laughable. maybe it's like inside out said. she might have just had a bad lawyer, though at that level, i'd be surprised.
posted by mrgrimm at 6:24 PM on January 5, 2005

This is just sickening. Have we made no progress since Wolf's early 90s tirades about the Beauty Myth? I can only hope that women ten years from now will look at today's mores/policies/codes/ads as hopelessly dated. I see no reason why anybody should have to alter their appearance to do a job, or why women should have to slop expensive acnegenic carcinogenic crap on their faces every day.

But -- to expect enlightened behaviour from a casino, for god's sake? An institution that takes advantage of the most unfortunate human behaviours & gives nothing in return except flashing lights and colourful facades is hardly to be counted on to treat its employees as anything more than sparkly automata.

It's just sad that there's so much sexism/lookism/ageism out there -- not everyone has the luxury of working in a liberal environment.

I hope that Jespersen wins her case, and that she (if she so desires) gets a bartending job at a place that'll make her feel welcome. (& that the casinos go out of business because people donate their money to worthy causes instead.)
posted by salomesalami at 6:39 PM on January 5, 2005

esquire, I would remove the makeup requirement from the policy for both genders, which gets to your second point. When weighing the burden, I think there's a range within which differences between the genders is acceptable. It doesn't have to balance exactly, but it shouldn't be too wide a gap. In my opinion, Harrah's makeup policy exceeded the gap, which is why I think it should be nixed.
posted by hoppytoad at 10:02 PM on January 5, 2005