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Article Excerpt
I. INTRODUCTION
II. BRANDING, MARKETING, AND APPEARANCE STANDARDS IN SERVICE BUSINESSES A. Branded Service B. Mechanisms of Control 1. Production Line Routinization 2. Standardization by Transformation 3. Effects of Routinization on Customers and Culture C. The Walt Disney Model of Branded Service 1. Hiring and Training for Branded Service 2. Branded Workers: Appearance Codes III. BRANDING: SANCTIONED BY LAW A. Trade Dress: Protecting an Employer's Property-Like Interest in Its Brand B. Appearance Regulation in the Workplace 1. Cases in the Union Context 2. Constitutional Challenges to Appearance Codes 3. Privacy-Based or Wrongful-Discharge Claims at Common Law 4. Statutory Sex Discrimination Claims 5. A Case Study of Corporate Branding Accomplished Through Appearance Codes and the Law' s Response IV. THE JESPERSEN LITIGATION: AN INDIVIDUAL WORKER RESISTS CORPORATE BRANDING A. The Facts B. The State Lawsuit: Common Law Claims C. The Title VII Lawsuit: Discrimination Claims 1. The Complaint 2. The District Court Decision 3. The Ninth Circuit Panel Decision 4. The Ninth Circuit En Banc Decision V. BRANDING, SEX STEREOTYPING, AND EMPLOYMENT DISCRIMINATION LAW IN JESPERSEN A. Creating and Defending the Harrah's Brand 1. "If one employee failed to comply, the brand standard failed." 2. The Cult of Personal Loyalty 3. Bill Harrah's Feminization of Casinos 4. The Rise of the Bureaucratic Ethic and Corporate Loyalty 5. Technology and Marketing 6. Refining the Brand Through Expertise: The Image Consultant B. Commodification: Sexualizing Female Bartenders 1. Wearing Makeup: Branding Darlene Jespersen 2. Selling Sexuality: The Business of Casino Gaming 3. Sexualized Branding: The "Harrah's Look" 4. Property Rights in Work Law, Redux VI. THE FEMINIZATION OF BARTENDERS: FROM BARMAIDS TO BARTENDERS TO BAR BABES VII. (RE)FRAMING JESPERSEN'S CLAIM: RESISTING BRANDING A. Finding Allies in Community Organizations: The Alliance for Workers' Rights B. Modes of Resistance at Law: Individual Lawsuits 1. The Administrative Process 2. The Plaintiffs' Bar: The Solo Attorney Takes on Harrah's 3. Lambda Legal Defense and Education Fund: The Discrimination Claim 4. Individual Rights Versus Collective Rights: What Difference Does Framing Make? C. Recasting the Claim as a Collective Rights Claim: The Role of Unions 1. HERE and Nevada's Culinary Union Locals 2. Successful Union Strategies in Other Branding Cases VIII. CONCLUSION
I. INTRODUCTION
In the hypercompetitive American economy, marketing and advertising are critically important for businesses that seek to edge out the competition, attract new customers, and build customer loyalty. One online casino has found a way to cut through the clutter of advertising messages in a uniquely attention-getting way: branding the faces and bodies of human beings with its corporate logo. In June 2005, GoldenPalace.com paid Kari Smith $15,000 to have "GOLDEN PALACE.COM" tattooed permanently on her forehead. Smith auctioned her forehead as marketing space via eBay, apparently in an effort to raise funds to pay for private school for her son. (1) The resulting notoriety and news coverage was extremely beneficial to GoldenPalace.com, according to its marketing department. (2) GoldenPalace.com CEO Richard Rowe explained: "Conventional forms of advertising just don't cut it anymore. To get people's attention, you have to stand out from the crowd." (3)
Whatever one may believe about the wisdom or ethics of contracting to use human beings as billboards, Kari Smith was paid for the exact thing that she sold--her appearance, her personhood, her identity. Suppose, however, that a service business "brands" its workers by adopting compulsory appearance codes as part of a marketing strategy to promote distinctive services that will appeal to customers and so garner greater profits. Although the "branding" does not take place literally, through tattooing, it operates upon the bodies and psyches of employees in ways that certainly follow employees when they leave the workplace at the end of a shift, and that are sometimes permanent. Should service workers who are required to conform to these codes receive compensation for the lease of their bodies and psyches as the locus of the employer's brand? If the branding encodes sexual stereotypes that the law seeks to eradicate, should it be tolerated at all?
In this Article, we show how the adoption of increasingly sophisticated forms of marketing and branding strategies by service businesses creates property-like interests--separate and distinct from workers' physical and mental labor--from which employers profit: branded service. (4) We then analyze the role that law has played in reinforcing the practice of branding. In particular, work law defers to managerial prerogative to construct the business image and to control the workforce as the public face of that image, affirming the employer's power under the doctrine of employment at will to command adherence to appearance codes. The combined effect of the employment-at-will rule and workers' lack of bargaining power at an individual level thus permits employers to extract this additional value from workers above and beyond the compensated value of their labor, without cost. In the context of unionized workforces covered by collective bargaining agreements, companies have--at most--been required to demonstrate a reasonable relationship between the grooming code and the business's effort to project a corporate image that it believes will result in a larger market share. (5) In a small number of cases, sexualized branding that exposes workers to sexual harassment or is predicated upon sexual stereotypes not essential to performance of the job has been curtailed by the antidiscrimination mandate of Title VII. (6) However, challenges under Title VII have been effective only where corporate branding is at odds with community norms; where the branding is consistent with community norms that encode sexual stereotypes, customer preferences and community norms become the business justification for branding.
We explore the marketing of branded service and the law's response through an analysis of Jespersen v. Harrah's Operating CO., (7) in which the Ninth Circuit rejected a female bartender's Title VII challenge to Harrah's "Personal Best" grooming and appearance policy, which required (among other things) that women wear makeup, a practice that Darlene Jespersen found both personally and sexually demeaning. We examine the marketing and branded service strategy that Harrah's adopted, explain how it created a new and valuable property-like right for Harrah's, and describe Jespersen's reaction to her sexualized commodification. (8) We discuss the law's failure to respond to her individual claim, regardless of how it was bracketed. In analyzing the legal doctrine that emerged under Title VII, we pay particular attention to the ways in which judicial acceptance of the cultural stereotypes that shaped Harrah's branded service limited the law's ability to respond. (9) Next, we place Harrah's sexualized branding in the historical context of the gendered structure of work in the gaming industry and the bartending occupation. (10)
Finally, we make suggestions for reframing claims arising from branded service and the appearance and grooming codes associated with it. We urge reconceptualization of sex-stereotyped corporate branding as a collective harm to workers and evaluate avenues of resistance, including union organizing and collective bargaining, class-action sex discrimination or sexual harassment claims, and public consciousness-raising by social justice and community groups. Although these strategies, too, are limited--by the law's assumptions about the primacy of employer property rights, the tendency of majoritarian labor unions to focus on the economic interests common to all workers in the bargaining unit (rather than issues pertaining directly to gender identity), and judicial hostility toward collective action more generally--they afford the most powerful lever for altering community norms and, ultimately, for reshaping the values that guide the law. (11)
II. BRANDING, MARKETING, AND APPEARANCE STANDARDS IN SERVICE BUSINESSES
Like GoldenPalace.com, businesses operating in the competitive American marketplace are developing increasingly sophisticated strategies designed to help them "stand out in the crowd." (12) Using market surveys of consumer tastes and preferences, businesses look to customers for information about what attracts them to a particular product or service. Ultimately, businesses hope to develop a "brand" that will draw and retain customers. (13) A "brand" in this context means the set of practices, products, and marketing that create a unique identity that becomes associated in the public mind with a particular business. (14) Advertising that educates the consumer about the brand and reinforces its association with the particular business is critical to the success of branding. (15) Ultimately, successful branding yields high profit margins: Customers will pay more for a strong brand, and stock prices are considerably stronger for popular brands. (16)
Effective corporate branding produces a distinct emotional response in the customer which in turn leads to a predictable pattern of behavior: repeat business, willingness to pay higher prices, tolerance for errors, joining clubs that relate to brands, and providing favorable word-of-mouth advertising about the brand. (17) Customers who form an affective connection to a business's products and services develop loyalty and commitment to--even passion for--the brand. (18) Consumers who feel passion for the brand typically also embrace brand ownership as a means of self-expression: "[C]onsumers choose brands in great part to tell the world and themselves who they are.... The consumer in effect believes, 'The only way I can be who I am is to have specific products or services.'" (19)
A. Branded Service
While branding in the product context is a familiar concept, "branded service" is relatively new. Service businesses theorize that just as customers become attached to brands in the product market, they seek out familiar brands in the service market as well. "Brand atmospheres," "brand standards," and "branded customer service" draw the consumer, creating a "quasi-monopoly" for the business and helping it to stand out from the many businesses offering similar products and services. (20) Thus, customers will return to familiar restaurant chains and hotels as they travel through various cities, seek out the same airline for all their travel needs, and prefer the same vacation resorts in various locales (e.g., Sandals Resorts for couples, Club Med for singles) in order to gain access to the quality of service, amenities, and comfort to which they have grown accustomed.
In the service economy, the service "produced" is created and consumed simultaneously, so that no tangible product remains. (21) Because customers often participate in producing the service, management strategies that are customer-focused are the linchpin of successful business practice. (22) The interactive nature of service work means that in order to affect customer behavior and to conform to customer expectations, employers must regulate workers' personal characteristics, appearance, and behavior in more sophisticated and potentially invasive ways. Sociologist Robin Leidner explains:
By definition, nonemployees are a part of the work process of interactive services. Their presence decisively changes the dynamics of workplace control, since service recipients may both try to exert control themselves and be the target of workers' and managers' control efforts. Also, because the quality of the interaction is frequently part of the service being delivered, there are no clear boundaries between the worker, the work process, and the product in interactive service work. For this reason, employers often feel entitled to extend their control efforts to more and more aspects of workers' selves. Workers' looks, words, personalities, feelings, thoughts, and attitudes may all be treated by employers as legitimate targets of intervention. (23)
Branded service, then, refers to the process of integrating the business image into the service itself through human resource policies. (24) Since it is the service that ultimately creates the emotional connection between the consumer and the brand in a service business, regulation of workers' self-presentation and interactions with customers is critical. (25) Helena Rubenstein advises that "only people can brand products or services effectively--... we are not just selling a branded product but a mass of branded people who support and deliver it." (26) Thus, the service employer's regulation of workers essentially imprints the business brand on the worker's person.
B. Mechanisms of Control
One of the unique attributes of service work is its "emotional labor" component. (27) The emotional state of service-sector workers, unlike that of manufacturing workers, is a critical part of the service rendered. An unhappy, alienated factory worker may not be fond of her employer or the day-to-day tasks that she performs, but she is still able to perform them competently with a frown upon her face. The same cannot be said for many service workers, whose jobs require face-to-face, or at least voice-to-voice, interaction with customers. Such workers must convey the impression that they will provide willing service to the customer's satisfaction. Their goal--to produce a particular "feeling state" in the customer (i.e., satisfaction, pleasure)--requires that they suppress any contradictory feelings to maintain the outward appearance of a cheerful demeanor in order to produce the appropriate state of mind in customers. (28) In short, "the emotional style of offering the service is part of the service itself." (29)
Service businesses have developed two primary strategies for minimizing their dependence on workers' natural feeling states and controlling and standardizing the service-sector work process. The "production line" approach is oriented toward scripting and routinizing customer interactions, substituting technology and patterns of interaction for skill and motivation. Primarily appropriate for use with low-skilled, low-waged workers, this strategy gained popularity and acceptance through its use by McDonald's and other fast-food restaurants. (30) Production line routinization techniques allow management to hire fungible, low-cost labor and to tolerate high turnover rates.
The second method, the "transformation" or "empowerment" approach, confers control over the work process by transforming the worker into one whose personal characteristics, appearance, and values match the image that the company is seeking to project and market, and then allowing the worker to make his or her own judgments in interactions with customers. Such "self-regulation" techniques seek to create workers who act like managers without sharing managerial control or receiving managerial pay. Management control over self-regulated, empowered workers is inevitably more invasive of workers' private and psychic lives than more traditional means of supervision. (31) Because worker identification with the company and its image in consumers' minds is critical, workers' demographic characteristics (age, sex, race, education level, class status, etc.), presentation, dress, grooming, and behavior must fit the prescribed corporate image. (32) Advantages of the transformative approach include cost-savings realized from reduced middle management, increased productivity, and reduced union activity because the participatory management techniques tend to engage workers in a way that their hunger for respect and voice is diminished. (33)
1. Production Line Routinization
Standardization of service is not a new concept. Principles of scientific management were first applied to routinize industrial manufacturing work during the first half of the twentieth century. The goal of scientific management was to shift knowledge and control over the work process (and therefore power) from workers to management: By splitting up high-skilled jobs into their constituent parts and assigning the parts to less-skilled workers, costs could be reduced and efficiency (and therefore output) increased. At the same time, control over the work process was centralized. (34) The assembly line was the prototype of technological control achieved through application of scientific management principles to industrial production processes: Production was divided into discrete tasks that could be most efficiently performed by the worker who specialized in that particular assembly, and workers' movements were standardized. No worker possessed a complete picture of the production process; the work's conception was divorced from its execution.
In the service sector, routinization may be applied to the noninteractive aspects of the work--such as clerical aspects or assembly of fast food on a tray--exactly as it would in an industrial context. For the interactive aspects of the work, however, the form that routinization assumes will turn on how complex the task is. For the simplest interactive work, scripting, uniforms, and rules about worker demeanor and behavior may be sufficient.
McDonald's is the prototype for "production line" routinization in the service sector, particularly in low-waged, fast-moving, consumer-goods businesses. McDonald's systematically breaks down the service interaction into its component parts and scripts it in order to achieve uniformity. It regulates workers' clothing (uniforms are required), haircuts, jewelry, makeup, fingernail length and color, demeanor, words, mood, and manner (requiring smiling, eye contact, and a pleasant countenance, as well as a scripted series of questions and responses in interchanges with customers). (35) Ray Kroc, McDonald's founder, succeeded in controlling work routines and product quality on a massive scale, yielding an immensely popular and profitable brand. (36) The combination of detailed training, automation, and a "Hamburger University" (where managerial practices are inculcated) created front-line, low-waged service jobs that are "almost idiot-proof"; workers became fungible and high turnover was no longer costly. (37)
From the workers' perspective, production line routinization tends to rob workers' tasks of their variety and interest, and is associated with higher injury rates (particularly repetitive-motion injuries) because it affects the nature and pace of the work. (38) It is also linked to stagnation of workers' creative and problem-solving capacities, and to boredom and alienation. (39) Its primary psychological effect is to require suppression of the self in the service of others and enforced depersonalization; workers must separate themselves emotionally from the scripts they are required to utter or the responses that customers make to them that deviate from the script. The effects of such scripting and the requirement of service with cheer are potentially demeaning. However, routines may also be embraced by workers as functional, either because the routines assist them in controlling service interactions or because the routines provide shields behind which workers can take shelter from the insults and indignities that come with contact with the public. (40)
2. Standardization by Transformation
For more complex interactive work, such as the jobs of bartenders, cocktail servers, and flight attendants, scripting is inadequate to the task. Such work is typically branded and controlled in two ways: (1) the employer deliberately selects employees with characteristics that dovetail with the brand service that the employer seeks to market; and (2) the employer then builds on that "fit" with training that orients the workers psychologically toward the business's brand values and with regulations that script worker self-presentation (uniforms, appearance codes, and grooming rules). (41)
a. Selecting for "Brand Fit"
Transforming workers into "brand partners" inevitably impacts selection processes: Human-resources professionals are advised to select for "brand fit." (42) Barlow and Stewart suggest hiring applicants "who have a natural resonance" with the business brand. (43) Consider the retailer Abercrombie & Fitch. It actively sought college students who resembled its brand image: young, attractive, white, male, and preppie--"walking billboards" (44) who sported "the A & F look." (45) This sort of selection obviously risks violating antidiscrimination laws. (46) The significance of the law's sanction of branding is clearest here: The remedy for discriminatory selection processes may trigger judicial orders aimed at marketing practices themselves. In the Abercrombie & Fitch settlement, for example, the consent decree obligated the company to alter its marketing materials to reflect diversity. (47)
A more subtle example of selecting for brand fit involves Southwest Airlines' highly successful effort to brand its customer service as fun and high-spirited. Despite customer disenchantment with the no-frills aspects of Southwest such as no reserved seats and no first-class seats, the comedic philosophy of the airline persuades customers to tolerate the no-frills aspects and to book repeat business in spite of it. (48) Southwest searches carefully for workers who will be capable of providing branded service: As part of its interview process, it tests applicants for their ability to make fun of themselves and for their altruistic propensities (selecting workers who display both comedic and caring qualities). (49)
b. Inculcating Brand Values
Although employers may seek to script or routinize emotions at work--obligating employees to personalize the script with simulated sincerity, eye contact, and a smile (50)--maximally-effective branding is not completely scripted. A scripted encounter is unlikely to be perceived as authentic, and thus the emotional connection that allows the business to exploit the brand will not be made. (51) Accordingly, employers may institute training programs that seek to transform workers' personalities, appearances, and thought-processes so that they make predictable judgments that the employer would approve even in variable work scenarios that are themselves not always predictable. (52) Therefore, the most sophisticated branding integrates the personalities of the workers with the service, positioning them as an "essential living expression" of the brand: "the brand in action." (53) Human-resources policies seek to brand workers "from the inside out"; training programs and policies should produce a staff that acts, looks, sounds, and even feels in sync with the brand. (54) Ideally, the brand and the service should merge with one another in the customer's mind. (55)
Because it impacts personality and psyche, this form of routinization affects workers' identities more deeply than simple production line routinization does. For example, Amway Corporation has a sophisticated branding program that utilizes the transformational form of routinization to maximize the efficacy of its distributors as salespeople and recruiters for other distributors. Robin Leidner explains:
Amway goes far beyond providing distributors with routines for doing their work. The company tries to affect their lives in a global and permanent way, molding them through a process it calls "duplicating." There is no part of distributors' lives that Amway does not see as relevant to the success of the business, and therefore none is immune from corporate influence. Amway tries to shape the workers' family lives, political convictions, religious beliefs, personal goals, and self-concepts. It encourages distributors to break off ties with friends or relatives who are critical of Amway.... (56)
Workers subject to transformative routinization must either embrace the changes or don false personalities at work. For workers whose identities conflict with the employer's imposed norms of behavior, attitude, and appearance, the effect can be self-alienating. (57) In an effort to make this process easier for workers and to minimize their resistance, employers often furnish psychic strategies to help workers reconcile the conflicts between their work and their self-image. (58)
3. Effects of Routinization on Customers and Culture
In addition to its benefits for management and impact on workers, routinization of service-sector work has spillover effects on customers and on the surrounding culture.
a. Effects of Routinization on Customers
A significant difference between routinization in the industrial context and routinization in the service context is the replacement of the dyadic struggle for control with a triad of workers, management, and customers. In order to be effective, routinization must also control the behavior of customers. Routines associated with front-line customer service standardize customers' behavior by limiting their demands to a predetermined spectrum (e.g., a menu notice that instructs "no substitutions"). (59) Where the routine denies workers the flexibility to respond to customers' requests, or the logic of the routine does not match social norms, or the customer simply refuses to participate, customers are likely to respond with frustration directed at the workers. (60) Interactions can be scripted to reduce or prevent customer resistance, or to mute the effects of customer frustration by using empathic or choice-preserving language. (61)
Routinization can also entail the involuntary shifting of labor to the consumer, as Nona Glazer has explained. (62) Consumers scan and bag their own groceries, serve themselves at buffets, salad bars, and soft drink machines, bus their own tables in quick-order restaurants, and pump their own gasoline--all work that was once paid labor. Employers use routinization and technology to break the service into its component parts and shift work to the consumer that the employer previously paid workers to perform.
b. Effects of Routinization on Culture
Finally, routinization impacts the culture at large by shaping social norms. Because "[r]outinization assumes that people are largely interchangeable, that they are not deserving of sincerity, [and] possibly that they can easily be duped," (63) it contributes to an atmosphere of deception and illusion. Consider sociologist Robin Leidner's analysis of the cultural impact of routinization:
The efforts of service organizations to routinize human interactions violate important cultural standards about the status of the self, standards that honor authenticity, autonomy, sincerity, and individuality. Although these values are compromised daily in countless ways, they are ideals most Americans take seriously. In routinized service interactions, the collision between ideals and practices is particularly marked, and the uncomfortable contradictions are hard to ignore. Service routines compromise the identities of workers most obviously, but the principles and self-conceptions of service-recipients are challenged as well as they are forced to respond to organizational manipulation. Authenticity, autonomy and sincerity allow the development and expression of the unique self that is culturally ascribed to every person. Individuality is highly honored in American culture (even though conformity is richly rewarded), and this value is especially hard to reconcile with routinized interactions.... Routinized interactive service affronts the individuality of both worker and service-recipient. It assumes that workers' individuality is not substantial enough or worthy enough of deference to interfere with their
adoption of qualities designed for them by others. And it further assumes that service-recipients, grouped according to market segment, will be able and willing to fit into standard procedures and accept standardized treatment. (64)
C. The Walt Disney Model of Branded Service
In the early 1980s, Tom Peters and Robert Waterman revolutionized management strategy with a best-selling book that explored the art and science of management techniques used by leading companies with records of profitability and innovation. (65) One of the companies featured was Walt Disney, which subsequently established the Disney Institute to teach its branded quality service and management to others. Because Disney's sophisticated service-branding methodologies and human-resources policies have become so influential, they are worth summarizing here.
1. Hiring and Training for Branded Service
Disney begins by looking for "brand fit." Its interviews are designed to ferret out workers who will have the attitude that Disney seeks. Disney adheres to the maxim, "Hire for attitude, train for skill." (66) During the application process (which Disney refers to as "casting the show, (67) Disney shows a video that gives prospective applicants information about employment conditions, including its dress code and grooming regulations; about ten percent of applicants leave at that point, but those who stay accept the circumstances of their employment. (68) Once a worker is hired, "basic training" at "Disney University" takes a full week. (69) The training covers Disney's history, a cultural indoctrination to the Walt Disney philosophy, and an overview of all aspects of the Disney property. (70) The message is that Disney cast members are a team with a uniform look; individuality or anything that tends to attract attention (other than the scripted Disney theme look) is discouraged. (71) In an effort to inculcate the proper worker attitude towards service, Walt Disney refers to its workers as "cast members" or "hosts" and its customers as "guests"; uniforms are "costumes" and workers--from sweepers to bakery workers to Mickey Mouse and Donald Duck--put on a "show." (72) Turnover is low (fifteen percent in the 1990s), morale is high, and customer service touted as outstanding. (73)
2. Branded Workers: Appearance Codes
Disney's appearance regulations are legendary and have been emulated by many other companies. (74) When Disneyland first opened in 1955 in California, Walt Disney established appearance-code guidelines in an effort to distance its facilities from the American image of amusement parks as "sleazy carnivals," instead portraying itself as "a clean, wholesome family environment." (75) The purpose of the appearance code was to ensure that workers appeared clean-cut and fresh-faced, without gaudy makeup, excessive jewelry, disheveled locks, or outlandish hairdos. By 1958, the general guidelines had metamorphosed into strict and specific quality standards that took the form of do's and don'ts: do wear undergarments; don't wear fingernails extending more than one-quarter of an inch past the fingertips; don't wear eye shadow; no frosting or streaking of hair; only certain colors of nail polish were acceptable; limitations on the amount and size of jewelry applied; men could not grow beards, mustaches (although Walt Disney himself had a mustache), or wear sideburns below the ears. (76) Violation of the code was grounds for discharge.
The strict 1950s standards were modified slightly over the years as fashion trends shifted: earrings were permitted for women (at first only studs, then later larger earrings); a summer uniform of Bermuda shorts and knee socks was instituted; eye shadow and eye liner were authorized in 1994; mustaches (but not beards) were permitted in 2000; cornrows and hoop earrings were embraced in 2003. (77) The "Disney look" is defined in a forty-page book, complete with sketches of do's and don'ts. (78)
Disney's brand-service standards and the human-resources strategies that create them have been so successful that Disney has profited from marketing the branding method itself. A visit to the Disney Institute's Web page reveals a diverse and impressive array of corporate clients who have traveled to Florida for instruction. (79) Perhaps not coincidentally, Gary Loveman, who became the chief operating officer of Harrah's Entertainment in 1998 (and later its CEO), consulted for Disney in his early days as an academic at Harvard. (80) Clearly, branded service and its associated human-resources policies are big business.
III. BRANDING: SANCTIONED BY LAW
The law's response to corporate branding signals deference to corporate interests in developing and marketing a public image. In the service economy, the firm's interest in branding its workforce has been elevated to quasi-property status. In this Part we outline the law's apparent sanction of branding through trade dress protection under the Lanham Act and through protection under the work law of managerial prerogative to control the workforce.
A. Trade Dress: Protecting an Employer's Property-Like Interest in Its Brand
The way that service workers and their services are "packaged'--the design and color of their uniforms, the scripted routines they use to deliver their services, or the decor of the company's retail premises--are elements of the employer's branding of its service/product that are described in trademark law as "trade dress." One court defined the term as follows:
"'Trade dress' refers to 'the image and overall appearance of a product.' It embodies 'that arrangement of identifying characteristics or decorations connected with a product, whether by packaging or otherwise, [that] make[s] the source of the product distinguishable from another and ... promote[s] its sale.'" Trade dress "'involves the total image of a product and may include features such as size, shape, color or color combinations, texture, graphics, or even particular sales techniques.'"
... [R]ecently "'trade dress' has taken on a more expansive meaning and includes the design and appearance of the product as well as that of the container and all elements making up the total visual image by which the product is presented to customers." ... [A]ny "thing" that dresses a good can constitute trade dress. Protectability is another matter entirely. (81)
An employer's investment in trade dress that arises out of the creation and enforcement of dress codes, such as uniforms, creates a property-like interest that is protected from infringement by competitors under common-law and statutory trademark law only if the unregistered "trade dress" is both "distinctive in the marketplace, thereby indicating the source of the good it dresses," and "primarily nonfunctional," and, in addition, "the trade dress of the competing good is confusingly similar." (82) For example, the Court of Appeals for the Second Circuit found that the Dallas Cowboys Cheerleaders, Inc., had "a valid trademark in its cheerleader uniform," which consisted of "white vinyl boots, white shorts, a white belt decorated with blue stars, a blue bolero blouse, and a white vest decorated with three blue stars on each side of the front and a white fringe around the bottom." (83) The court found that "the particular combination of colors and collocation of decorations that distinguish [the Dallas Cowboys Cheerleaders'] uniform from those of other squads" constituted an "arbitrary design which makes the otherwise functional uniform trademarkable" under the Lanham Act. (84) Moreover, the court found that Pussycat Cinema--in producing a sexually-explicit film featuring an actress who wore an "almost identical" cheerleader's uniform--not only created the "likelihood of confusion" about whether the Dallas Cowboys Cheerleaders sponsored or approved the use of the trademarked uniform in the film, but also risked injuring the Dallas Cowboys Cheerleaders' good name and reputation. (85)
While distinctive, nonfunctional aspects of service workers' uniforms, appearance, and service routines may in some circumstances be protectible "trade dress," many elements of an employer's investment in "packaging" its service workers can be freely copied by competitors. (86) For example, in HI Limited Partnership v. Winghouse of Florida, (87) Hooters claimed that Winghouse, a competing sports bar and grill in Florida, was liable for trade-dress infringement because it required its female employees to wear uniforms of black tank tops and black running shorts that Hooters alleged were "confusingly similar" to the uniforms worn by Hooters Girls. The district court concluded that, "as a matter of law, the Winghouse Girl, with her black tank top and black running shorts, is not a 'knockoff' of the Hooters Girl." (88) The court explained that
what distinguishes the Hooters Girl from other sports bar and grill servers is her distinctive uniform, consisting of a white tank top shirt prominently featuring the Hooters name and "owl" logo across her chest, and orange nylon running shorts. Although Hooters Girls occasionally wear black uniforms, as a matter of law, those uniforms are not distinctive, nor have they acquired secondary meaning associated with Hooters restaurants. ... Hooters simply cannot prevent a competitor from using a server outfit as different as a black tank top and black running shorts. If Hooters could stop Winghouse from using that particular color and combination, then it could prevent any other competitor from using any color combination of tank top and running shorts. This would be an impermissible burden on competition. Moreover, a server uniform consisting of a tank top t-shirt and nylon running shorts is fairly common to sports bar and grills. Hooters cannot monopolize this generic theme any more than an upscale steak restaurant featuring tuxedo-clad servers could preclude competitors from using the same or similar uniform. (89)
In some situations, the human being wearing the "trade dress" merges with the brand image delineated by the employer's appearance code. In such cases, the "functionality" and centrality of the human being in conveying (or in being) the employer's branded product disqualifies the employer's interest from trade dress protection under the law. (90) Moreover, the more ephemeral aspects of the way an employer literally dresses and markets its workers--such as a uniform's "professional" or "sexy" appearance also cannot be protected as "trade dress," even though these may be essential components of the brand image the employer intends to convey to its customers:
Although producers and marketers of goods can adopt and seek to protect a seemingly infinite variety of product packages and product configurations, the recognition that trade dress can comprise "any thing," "'even particular sales techniques,'" should not be taken to mean that a company can protect a product's marketing theme or any other incorporeal aspects of the good incapable of being perceived by the senses. The aura about a product, the cachet that ownership or display of it creates, and the kind of appeal it has to certain consumers do not dress a good in trade. Rather, those intangible "things" emanate from the good, its dress, and the marketing campaign that promotes the dressed good. (91)
The difficulty of protecting its investment in employee dress and grooming styles from copying by competitors, however, does not leave an employer without means to build up its own "brand" of employee appearance and set itself apart from its competitors. The mechanism employed will be rigorous enforcement of employee dress and grooming rules: all other things being equal, the employer whose employees deliver the brand image best, measured by strict conformance with its appearance rules, will be the employer who attracts the most customers. Moreover, regardless of whether aspects of an employer's trade dress are protected from infringement by common law or statutory trademark law, the notion that service employees' dress and appearance (as regulated by the employer's rules) are part of the company's brand means that employers have a property-like interest not simply in their branded service, but in their employees. The employer "owns" (or leases, for the duration of work time) the rights to use the employee's face, body type, manner, and even emotions in service of pleasing the customer. The worker who is required to wear a particular uniform, hairstyle, facial expression, or amount and style of makeup--a "facial uniform'--is donating body space for the employer's branding objectives. Under the prevailing understanding of the employment contract, workers are compensated for physical and mental labor, but not for the "human billboard" function that they may also perform.
The law participates in this exchange by ignoring the value of the employees' autonomy and identity, while at the same time protecting employers' rights to use the brand standards that they have developed to extract significant additional value from workers without compensating them for it. Even where the Lanham Act or the common law does not confer trade dress protection for the brand, the laws governing the employment relation protect the employer against workers' efforts to resist the imposition and effects of branding. The primary source of protection is employment at will, but the various legal regimes ostensibly designed to create or enforce workers' rights--including labor law, constitutional doctrine, the common law, and antidiscrimination law--are generally interpreted to protect the employer's interests in branding as a part of its managerial prerogative to control production. We turn next to an examination of the ways in which various legal doctrines operate to protect the employer's property-like interest in advancing its brand whenever it conflicts with employee rights.
B. Appearance Regulation in the Workplace
Work law's response to branding has been played out in cases challenging employers' uniform requirements, appearance codes, and grooming policies. Many other commentators have reviewed the law's treatment of appearance regulations in the workplace, and we do not wish to cover the same ground. (92) We summarize here a few of the major doctrinal bases for challenges, using illustrative cases that highlight the role of branding in defending appearance codes against legal challenge.
The cases arise in four arenas: (1) in the union context, either under the National Labor Relations Act (NLRA) (93) or pursuant to grievances subject to arbitration under collective bargaining agreements; (2) as constitutional challenges brought by public sector employees; (3) as common-law privacy and wrongful-discharge claims brought by private sector employees; and (4) as discrimination claims. In all of these cases, employers defend the employment practices that are linked to branding by showing the connection between their property interest in managing and controlling the business and the brand's efficacy in conveying a particular corporate image to the public.
1. Cases in the Union Context
Cases under the NLRA deal with workers' rights to organize and to bargain collectively over conditions of work, including appearance codes. They require the Board and the courts (or, in cases arising under collective bargaining agreements, the arbitrator) to balance employers' rights to manage and control the operation of the business against workers' statutory rights to engage in concerted activity for the purposes of mutual aid or protection, which are explicitly protected against employer interference by NLRA sections 7 and 8(a)(1). In addition, a unionized employer that promulgates a grooming or appearance standard without first negotiating with its union violates NLRA section 8(a)(5); grooming and appearance standards are changes in working conditions and therefore are "mandatory" subjects of bargaining under the Act, meaning that the employer must bargain to impasse with the union prior to implementing the rule. (94)
a. Cases Involving Union Insignia
The Supreme Court held early on that workers covered by the NLRA have a statutorily-protected right to wear union insignia (e.g., buttons, pins) in the workplace. In Republic Aviation Corp. v. NLRB, (95) the Court ruled that employers may restrict the wearing of union insignia only where "special circumstances" justify the restriction. The employer bears the burden of proof to establish that special circumstances exist. (96) Although cases from the manufacturing context typically involve production or safety justifications, cases from the service sector added an additional justification. Where workers have contact with the public, the Board and courts give weight to the employer's "image'-based justification, particularly where the image is adopted to render the business competitive. (97) In the image cases, employers who rigorously enforce dress and grooming codes against all incursions are most likely to prevail because it is difficult to establish anti-union animus; in addition, rigorous enforcement of the code supports the employer's argument that maintenance of its image through the branded appearance of its workers is vital to its business interests.
In one of the earliest cases arising from a service sector environment, NLRB v. Harrah's Club, (98) the Ninth Circuit refused to enforce the Board's ruling that a Harrah's resort in Stateline, Nevada, had violated section 8(a)(1) of the NLRA by enforcing a nonadornment policy that prohibited the wearing of union buttons on workers' uniforms. The court noted Harrah's longstanding and strict regulation of employee dress and appearance, as well as its consistent enforcement of the policy through daily inspections by management personnel. (99) The policy was unrelated to union activity and was not limited to union buttons; it was enforced rigorously against badges, pins, and buttons proclaiming religious, political, or social affiliations. Moreover, no labor organizing campaign was ongoing; indeed, workers at this facility were already unionized and had a labor contract. The court reasoned that, although the wearing of union buttons is generally a protected activity under section 7 of the NLRA, in this case there was no evidence that the "several" workers wearing union buttons had a protected purpose that fit within the "collective bargaining or other mutual aid or protection" language of section 7. (100)
The court also refused enforcement on the separate ground that, in striking a balance between workers' rights to self-organization under section 7 and the employer's right to operate its business, the Board had accorded too little deference to Harrah's right to "maintain discipline." The court explained the special deference that it felt was necessary to appearance codes and uniforms in a service business that seeks to project a particular image:
Most business establishments, particularly those which, like respondent, furnish service rather than goods, try to project a certain type of image to the public. One of the most essential elements in that image is the appearance of its uniformed employees who furnish that service in person to customers. The evidence shows that respondent has paid close attention to its public image by a uniform policy of long standing against the wearing of jewelry of any kind on the uniform. Respondent should not be required to wait until it receives complaints or suffers a decline in business to prove special circumstances. Businessmen are required to anticipate such occurrences and avoid them if they wish to remain in business. This is a valid exercise of business judgment, and it is not the province of the Board or of this court to substitute its judgment for that of management so long as the exercise is reasonable and does not interfere with a protected purpose.... We think that the regulation in question, under the circumstances, is reasonable. (101)
Service businesses are not automatically exempt from the requirement that special circumstances be shown; however, an investment in and a commitment to a distinct corporate image appears to be critical. An employer's desire to present to the public an image of a neatly groomed and uniformed driver may not suffice particularly where the employer allows other types of pins or buttons unrelated to its business. (102) Nor will the Board and courts countenance restrictions where there is no showing by the employer that the button or insignia interferes with customer service or patient care. (103) However, where the employer can show that its goal is consistent with improved customer service, a valid business justification, courts generally allow the restriction. In Burger King v. NLRB, (104) for example, the court ruled that a fast-food chain could prohibit the wearing of union buttons on employer-supplied uniforms; the chain had a right to "project a clean, professional image to the public." (105)
In Starwood Hotels & Resorts Worldwide Inc., (106) the Board ruled that a San Diego-based Starwood resort hotel was justified in prohibiting in-room, food-delivery servers from wearing union buttons in public areas. The Board gave great weight to the hotel's efforts to project a "Wonderland" image, as expressed through marketing campaigns that emphasized that guests could fulfill their "'fantasies and desires'" and get "'whatever [they] want whenever [they] want it.'" (107) The hotel also adopted the host/guest metaphor, referring to its lobby as its "living room," and viewed itself as performing its branded customer service, referring to its employees as "talent" or "cast members," their supervisors as "talent coaches," and the hotel experience itself as "wonderland." (108) In an effort to further its image, the hotel commissioned uniforms, at considerable expense, that provided a "trendy, distinct, and chic look" for workers who have public contact. (109) It required workers to wear a small "W" pin on their upper-left chest area and prohibited all other uniform adornments. In addition, the hotel instructed workers to interact with guests by introducing themselves by name to each guest and to make every interaction "Genuine, Authentic, Comfortable, Engaging, Conversational, with Personality, Fun." (110) The hotel's goal was to "create 'an emotional attachment' for guests, to move from 'never say no to let me work the magic,' to look for opportunities to 'grant wishes,'" and to make the "W" experience "'[a] dream come true.'" (111)
Against this backdrop, the hotel argued that the union button was the equivalent of "graffiti on the Mona Lisa." (112) The Board refused to second-guess the legitimacy of the employer's business plan to compete effectively with other resort hotels, ruling that it had met its burden of showing special circumstances justifying the prohibition. The combination of the employer's investment in developing its branded service and the employer's painstaking efforts to enforce the brand convinced the Board that the brand was sufficiently central to promoting the employer's corporate image to trump employees' rights under the NLRA to wear union buttons.
b. Refusals to Bargain over Appearance Codes
Although the law is settled that appearance and grooming codes are mandatory subjects of bargaining, most unions (at least in the last twenty-five years or so) seem to have accepted appearance and grooming codes without objection at a collective level. (113) Rather than challenging the codes themselves as invasions of employee privacy or autonomy, unions shifted to grieving individual cases where the codes were applied in inequitable ways or the disciplinary sanction was disproportionate to the rule violation. This is consistent with a more general reluctance by unions to mount collective challenges to workplace rules as dignity invasions, at least when the rules are consistent with prevailing social norms. Pauline Kim observed the same trend in the context of challenges to workplace drug-testing rules: Although unions initially brought workforce-wide challenges to drug-testing rules, over time the disputes became both more individualized and more narrowly limited to economic relief. (114) Kim explains:
The early workforce-wide cases spoke in terms of basic human dignity and fundamental rights, asking what types of interests were sufficiently weighty to justify burdening these important rights. By contrast, the later cases hardly speak at all in terms of privacy or dignity. Rather, they focus on compliance with procedural safeguards and the protection of the material interests, for example jobs and wages, of their members. Workers who felt aggrieved because of the manner in which a test was administered, or by the intrusiveness of the test itself, could not recover damages for dignitary harms, and those who suffered no tangible job loss were essentially remediless under the collective bargaining system. Thus, although the presence of a union undoubtedly insured that its members received procedural protections they otherwise might not have had and likely worked to check the worst abuses, collective resistance to mandatory drug testing became routinized over time, focusing on consistent application of the rules, rather than on protecting the dignitary and privacy interests of workers. (115)
There have been two deviations from this general pattern in the context of corporate appearance codes. The first involves situations where the appearance code imposes costs that could be readily monetized. In these cases, unions demand bargaining over the costs of compliance with the codes (such as costs of purchasing or laundering uniforms) (116) and, when necessary, have brought so-called donning and doffing claims under the Fair Labor Standards Act (117) seeking payment for time necessary to change in and out of uniforms, to put on and take off safety gear, etc. (118)
The second involves appearance codes that are imposed upon a unionized workforce that was not previously exposed to such requirements. For example, Disney's American unions--bowing to the wishes of the majority of their memberships, who had been indoctrinated by the Disney screening and training process to accept Disney's appearance code as a condition of employment--tolerated Disney's code as long as it was "reasonable." (119) However, unions at the Disneyland Hotel raised challenges to the code when Disneyland was acquired by Disney in the 1980s. Disney resisted, and the challenges were apparently unsuccessful. (120) A few workers did flaunt the appearance code by wearing union buttons, and the unions apparently pressed the workers' rights in these cases before the NLRB. (121) Subsequently, some of Disney's unions successfully appearance code, but was ordered not to wear them because they were still "insignia"; the union negotiated for worker-friendly rules on uniform care (122) and sought and obtained compensation for the time spent changing into the costumes from street clothes. (123) French labor unions at Euro-Disney, accustomed to a culture and legal context more protective of worker autonomy, have been far less tolerant; they vigorously protested the appearance code, arguing that it represented an "attack on individual liberty." (124)
c. Cases Arising Under Collective Bargaining Agreement Just-Cause-for-Discharge Clauses
Arbitrators are frequently presented with cases where individual workers are discharged or disciplined for failure to comply with employer appearance codes. Appearance codes related to employers' desire to project a particular image to customers are generally considered to be within managerial prerogative, particularly where the nature of the business is sensitive to the image portrayed and the workers have contact with the public. (125) However, the right to regulate appearance is not absolute: Employers must establish the relationship between the image that they seek to project and the need to regulate employee appearance. (126) Arbitrators are particularly sensitive to employer work rules that extend beyond the work arena and encroach on workers' private lives. (127)
Arbitrators follow the lead of the Board and courts in the union insignia cases, requiring employers to produce evidence that workers' failure to comply with the grooming rule or appearance code will damage the business's public image or otherwise negatively impact customer service. Arbitrators in such cases typically acknowledge the employer's legitimate interest in constructing and maintaining its public image, and uphold "reasonable" grooming, dress, and appearance codes. However, most arbitrators hold the employer to a high standard of proof to demonstrate the link between the policy and the image that the employer seeks to portray.
Customer disapproval or complaints are significant in establishing the justification for appearance codes and grooming policies. For example, in Pacific Southwest Airlines, (128) the arbitrator rejected the airline's argument that its rule requiring male flight attendants to be beardless was essential to convey a conservative image, consistent with perceptions of competence and reliability. The airline argued that its image constituted a vital asset in a competitive industry. The arbitrator rejected that justification, finding no evidence that the type of beard that the grievant wished to grow (one inch long, neatly trimmed) would damage the airline's public image or its business activities. The absence of customer complaints or statistical evidence supporting the airline's beliefs about customer perceptions was fatal. The arbitrator set a high bar for the employer's proof: "The Company was required to prove that if flight attendants were allowed to wear neatly trimmed beards, passengers would choose not to fly with PSA." (129) Finding that the employer's asserted justification was "speculative," the arbitrator voided the rule.
These references to the relevance of customer reaction show how important cultural norms are in arbitrators' assessments of the reasonableness of employer appearance codes. Employer appearance codes are directly tied to social norms regarding dress, hair length, and fashion trends. Because these trends shift over time, employer appearance codes that are considered reasonable in one era may not be so in another, particularly if they impact workers' off-duty appearance. (130) For example, in the 1960s and 1970s, hair length and the presence of beards or facial hair became associated with nonconformity and radical political views. In an effort to project a conservative business image, many employers imposed restrictions on men's hair length or facial hair. Arbitrators enforced these rules in some cases but were sensitive to their application outside the workplace in other cases, often referencing cultural norms.
When the employer's policy is consistent with cultural norms, arbitrators have been more likely to view it as reasonable and related to the employer's interest in controlling its public image. For example, in Alpha Beta Co., (131) the arbitrator deferred to management's judgment in enforcing a "good grooming" rule against a clerk's helper who had cut his hair in three different lengths (one inch long on top of his head and tapered to a point on the back of his head, cropped close to the scalp on the sides, and shaved along a thin six-inch line on each side of his head). The arbitrator noted that the store was located in a small farming community and that coworkers described the grievant's hair cut as "outlandish" and "bizarre." (132) Nevertheless, the arbitrator found that suspension of the grievant was too severe a penalty when reasonable alternative job positions not involving public contact were available. (133)
By contrast, in Big Star No. 35, (134) the arbitrator reinstated a supermarket cashier and checkers who had been terminated for failure to maintain proper hair length and for having "unkempt" or "messy" hair. The arbitrator found that the employer had failed to establish a sufficient connection between hair length and business necessity and expressed concern that the hair length rule...
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