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Article Excerpt
Historically, most courts have sustained employer-imposed, gender-based dress codes. Two well-established exceptions to the rule exist for dress codes that either (1) objectify or sexualize women (1) or (2) allow for flexibility of standards for male employees' appearance but require stricter rules for women. (2) A third, still-evolving exception has recently developed regarding challenges to dress codes by transgender litigants. (3) Despite this recent progress, however, the classical gender-based dress code requiring women to conform to feminine stereotypes and men to conform to masculine stereotypes--has, up to the present, been sustained by a majority of the courts time and again. (4) It is, therefore, fortitious that two cases now offer insights as to why dress codes generally survive challenges, while also portending strategies for reversing this longstanding trend.
In Jespersen v. Harrah's Operating Co., (5) the Ninth Circuit, sitting en banc, sustained against a Title VII (6) challenge a "grooming and appearance" code adopted by Harrah's Casino that was entitled the "Personal Best" program. (7) Under the Personal Best program, bartenders (of which Darlene Jespersen was one) had to be "well groomed, appealing to the eye, be firm and body-toned, and be comfortable with maintaining this look while wearing the specified uniform." (8) Females, but not males, were required to have their hair "teased, curled, or styled," and to wear stockings (of nude or natural color), nail polish, and make-up that included lip color. (9) Despite the "Personal Best" policy, (10) Darlene Jespersen never wore make-up at work or outside of her job, due to her personal discomfort with it. (11) Indeed, she was so uncomfortable wearing makeup that she left her employment with Harrah's--after having been there for over twenty years--because of the new workplace policy. (12) Despite crediting Jespersen's sincere discomfort with the policy, the court sustained the program, finding that, although the program imposed different requirements on men and women, it did not unequally burden them and therefore was permissible. (13) The court's analysis focused not on whether Jespersen had proved that she suffered discrimination because of her sex, but rather, it considered whether women, as a group, suffered from the policy. (14)
The case of Schroer v. Library of Congress presented decidedly different facts to the United States District Court of the District of Columbia. Despite the understandably conspicuous absence of a dress-code challenge, that court nevertheless reached the same affirmation of an employer's ability to enforce a gender-based dress code. (15) In that case, a transsexual woman with extraordinary national defense and security qualifications had an offer to work as an analyst at the Library of Congress (16) withdrawn when her new employer learned that she was transsexual. (17) The plaintiff pied both sex stereotyping (i.e., alleging that if the applicant had conformed to a female stereotype, including having been born female, she would not have had the position taken away) (18) and straightforward sex discrimination (i.e., had she been born biologically female, rather than biologically male, she would not have had the position taken away). (19) Interestingly, rather than deciding the case under the familiar rubric of impermissible sex stereotyping that is now common for transgender litigants under Title VII, (20) the court instead found a straightforward sex-discrimination violation. (21) The apparent reason for this departure from contemporary jurisprudence was the District Court's stated concern that resolving the claim under a sex-stereotyping theory would undermine the established jurisprudence of dismissing classical dress-code challenges--just as the Jespersen Court had done. (22)
Thus, while there has been real progress, at least at the margins, in cases involving transgender litigants challenging dress codes based on sex stereotypes, much less progress has been made challenging the central and well-established case law sustaining gender-based dress codes. Moreover, if Schroer is any indication, courts seem to be increasingly concerned about how to protect transgender persons in employment--which is good. However, such progress, if it serves to foster or exacerbate bad law for non-transgender men and women who are also hindered in employment opportunities, will have come at a high price indeed.
It is against this judicial landscape that one is compelled to ask, why are the courts so seemingly entrenched in their rejection of dress-code challenges? There exist two potentially contradictory reasons for this established dress-code jurisprudence: Either the courts are over-empathizing with litigants like Darlene Jespersen--who are required by employers to conform to rigid stereotypes--or the courts cannot empathize with them at all. With respect to the over-empathizing side, judges may be saying to themselves, "I have to conform to gender-based stereotypes every day. I don't particularly like to put on make-up, stockings, wear a suit, tie, etc. It's really hard for me to conform to these gender stereotypes daily, and I'm doing what I need to do to fit into the narrow constructions of what makes a man or a woman. Therefore, everybody else should be able to do it, too."
On the other hand, just the opposite could be going on in the minds of some judges deciding dress code cases. Some judges may be saying, "Geez, what's so wrong with Darlene Jespersen? Either I (for female judges) put on makeup every day, or my wife (for male judges) puts on makeup every day. It doesn't seem to be that problematic. Yeah, she says it's so stressful--but alleging that it's devastating to her self-esteem? That's really hard to imagine."
These conjectures regarding the personalization of judges conforming to a dress code are not so far-fetched, as the Jespersen dissent demonstrates. In his dissent, Judge Kozinski engaged in a related thought experiment, resulting in his empathizing with Jespersen. (23) As Kozinski explained,
Whether to wear cosmetics--literally, the face one presents to the world--is an intensely personal choice.... If you are used to wearing makeup--as most American women are--this may seem like no big deal. But those of us not used to wearing makeup would find a requirement that we do so highly intrusive. Imagine, for example, a rule that all judges wear face powder, blush, mascara and lipstick while on the bench. Like Jespersen, I would find such a regime burdensome and demeaning; it would interfere with my job performance. (24)
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