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Article Excerpt
I. INTRODUCTION: EXCLUSIVE HIRING, BFOQS, AND SEX-SPECIFIC DRESS CODES
Las Vegas casinos exclusively hire women to serve cocktails on the casino floor, dressing them in tight-fitting, sexy, uncomfortable costumes and high heels. The exclusive hiring of women as cocktail servers violates Title VII's prohibition against sex discrimination unless the employer can demonstrate that being a woman is a bona fide occupational qualification (1) ("BFOQ") for the job of cocktail server. (2)
The courts interpret the BFOQ defense very narrowly. (3) In Int'l Union v. Johnson Controls, Inc., the Supreme Court held that an employer will prevail using the BFOQ defense only if sex or the sex-differentiated job qualification relates to the "essence" or the "central mission" of the employer's business and is objectively and verifiably necessary to the employee's performance of job tasks and responsibilities. (4)
While courts, scholars, and the Equal Employment Opportunity Commission (EEOC) consistently interpret Title VII to forbid employers from using customer preference as a defense to illegal discrimination, (5) they recognize the defense to protect consumer preferences in three situations. First, some courts permit defendants to use the BFOQ defense in health care or prison situations where the patient or inmate's fundamental right to personal privacy or safety is at stake. (6) Second, while courts do not recognize a BFOQ defense for employers hiring women for sex appeal, (7) Dean Katharine Bartlett concludes that sex should be a BFOQ if the central mission of the employer's business is to sell sex or sexual entertainment. (8) Finally, the EEOC concludes that sex may be a BFOQ to guarantee authenticity in a dramatic production. (9)
These exceptions are narrow and may or may not reasonably exclude casino operators from claiming a BFOQ defense for hiring women exclusively as cocktail waitresses. Although casinos may have difficulty proving that the essence of their business is to sell sex, the EEOC's recognition of authenticity may support a casino's BFOQ defense. Casinos will argue that the essence of their business is entertainment and that young female cocktail servers dressed in sexy garb represent the epitome of what a Las Vegas casino is: a glamorous illusion. The casino's brand identity, the argument goes, is closely related to the appearance and dress of the cocktail servers, and hiring attractive women and dressing them in sexy uniforms is related to the essence of the entertainment business.
Strict appearance and dress codes governing cocktail servers' uniforms are closely related to, but not determinative of, the question of whether Title VII permits casinos to hire women exclusively to serve cocktails on the casino floors. Without the appearance codes and uniforms required of cocktail servers, the casinos' argument that cocktail servers must be women would necessarily fail. It is not merely women, but women with a particular appearance, that casinos hire as cocktail servers. In most casinos, cocktail servers are young, shapely, smiling, and thin. The form-fitting uniforms enhance their sexuality and the illusion that the cocktail server exists merely to please the male casino customer.
Sitting en banc, the Ninth Circuit Court of Appeals recently decided Jespersen v. Harrah's Operating Co., (10) an appearance code case that may have significant repercussions in Nevada casinos and other similar establishments. In Jespersen, Harrah's Casino in Reno, Nevada fired the plaintiff, a female bartender, for refusing to wear makeup. The Ninth Circuit concluded that sex-differentiated appearance and grooming codes are legal in jobs held by both men and women unless they impose unequal burdens on men and women. (11) The Ninth Circuit, however, added an interesting twist. It concluded that a plaintiff may attack a dress and grooming code under Price Waterhouse v. Hopkins (12) if the code intentionally stereotypes women because of their sex and the stereotyping objectively interferes with the woman's ability to perform the job. (13)
Undoubtedly, the uniforms worn by women cocktail servers intentionally stereotype them because of their sex. After Jespersen, a casino would have to prove, in response to a lawsuit challenging its dress code, that it is a BFOQ for a woman cocktail server to dress in a sexy uniform. Assuming that the courts would conclude that being a woman who dresses in sexy garb is not a BFOQ for the position of cocktail server, Jespersen raises the question of whether the casinos may legally hire both men and women, and dress both in sexy costumes, which in essence, sexually stereotypes both men and women. (14)
This article examines the strengths and weaknesses of potential legal and policy arguments concerning whether being a woman dressed in a sexy uniform is a BFOQ for the job of casino cocktail server. Concluding that being a woman should not be a BFOQ for the job, this article addresses whether casino owners may require that women and men cocktail servers wear sexy provocative uniforms to serve cocktails in Las Vegas casinos.
Part II briefly describes a "typical" cocktail waitress in Las Vegas. Part III analyzes courts' and scholars' interpretations of the proper scope of the BFOQ defense. Part IV explores both current interpretations and policy considerations concerning application of the BFOQ defense to Nevada casinos that argue that being a sexy, young woman is a BFOQ for the job of cocktail server. Part V addresses whether Jespersen permits casino owners to dress both women and men cocktail servers in sexually provocative clothing. It asks whether the unequal burdens test would apply to men and women whose jobs require them to wear sexually stereotyping clothing and, if so, how the courts should decide whether particular sexy clothing places an unequal burden on men or women.
Finally, this article concludes that being a woman should not be a BFOQ for the job of cocktail server, but that Jespersen should permit casinos hiring cocktail servers and other similar employers whose jobs include an aspect of performance to require that both men and women wear sexually provocative uniforms to work. This conclusion should apply, however, only in those jobs where the employer legitimately sells entertainment and the job itself involves performance. For industries other than those promoting entertainment and jobs that do not involve performance, requiring men and women to perform their sex at work may cause harm to their sense of identity and intrude upon their privacy interests. (15)
II. A COCKTAIL SERVER'S JOB (16)
The scantily clad young woman maneuvers through the crowded smoky room, carrying a tray full of drinks. She wears high heels, long black stockings, a tight-fitting bustier, and short-shorts, a costume that displays her long legs and ample breasts. Her hair is fixed and her nails are painted a light pink. She wears carefully-applied foundation, eye liner and shadow, lipstick, and blush. Although her arms are bare and the room is very cold, she does not wear a sweater. She always wears a smile as she walks from table to table serving the patrons in the Las Vegas casino. While some would consider her look an anachronism, others believe that she looks glamorous, sexy, and willing to serve; she exudes the aura of a person who has no problems of her own. She is part of the illusion that Las Vegas sells to its customers. There are no problems in Las Vegas: Everyone is here to serve the customer.
Before we see her on the casino floor, the cocktail server, who is a single mother, picked up her two children from school, quickly cooked them dinner and got them started on their homework. She spent an hour putting on makeup and fixing her hair before leaving for the casino. Once at the casino, she picked up her uniform from the casino dry cleaners and dashed to the locker room to dress for the evening. In the locker room, she dressed in her required clothing, even down to the regulation push-up bra. Last year she underwent breast augmentation surgery. Her employer offered to pay for it, and she finds that her tips are better now that her cleavage is deeper and her breasts firmer. She hastened to attend a required fifteen minute roll-call meeting at the casino when her supervisor inspected her uniform to ensure that her appearance followed the strict regulations of the casino. Had she not worn her hair properly, or had she worn flat shoes, her supervisor may have docked her points or sent her home. Had she worn a sweater, her supervisor would have reminded her to remove it before she went onto the casino floor, despite the frigid temperatures.
Now the cocktail server is on the floor serving customers. She makes a considerable income, the vast majority from tips, and is relatively happy with her lot. She works at one of the "high-end" casinos that attract a wealthier clientele and she feels somewhat superior to the "girls" who work at the "low-end" casinos. She has heard rumors that at some of those casinos the management requires cocktail servers to sign agreements that they will be weighed monthly. If they gain more than six pounds, they will be laid off until they lose the weight. At least she does not have to put up with that treatment!
At 32 years old, she knows that this job will not last forever; if she keeps in shape, she may be able to last until she hits 38 or 40. She knows a number of women who are serving cocktails at other casinos who are well into their 40' s. But she is not sure how much longer she has at the job because the casinos are increasingly hiring younger women to serve cocktails. She also knows that a neighboring high-end casino replaced its older cocktail waitresses a few years ago with "bevertainers". The concept was that the women would dance as they served cocktails. The casino eliminated some cocktail server jobs and held auditions for the new servers. Those who auditioned for the job were younger and many had aspirations to model or act. Some believed that the casino introduced the bevertainer concept not only to rid itself of the older women who served cocktails, but also to change the cocktail server position from union to non-union.
She isn't sure how she feels about union representation because she works in a non-union shop. Most of the cocktail servers in town are represented by the Culinary Workers Union, but there are a few casinos that do not have union representation. (17) Although she does not see much of a difference in working conditions for cocktail servers where the unions exist, she believes that the union might be more protective of job security and longevity.
She knows that there are no men serving cocktails on the floors of any of the casinos. Her view is that no man would want the job. When asked whether men should be hired for the job, she thinks it would be impossible--what would they wear? This is a woman's job, and, anyway, she makes more in tips than the bartenders and bar backs who stock the bars, who are mostly men. It is true that the casino is loud and smoky, and that her feet ache at the end of the day. The clients are often fresh and occasionally harass her, but in most casinos there is good security. If a client really acts up she knows she can have him bounced, unless perhaps he is a high roller. High rollers get special treatment and it is more difficult to have them evicted. (18) She knows of a number of women who developed hip problems from carrying the heavy trays on one side. Even she, who is relatively healthy, has her spine adjusted regularly by a chiropractor.
One thing does bother her a little. Each casino has employees who act as hosts to the high rollers. The hosts arrange dinner and show reservations for guests, and generally serve as resources to the high-betting patrons. Because the vast majority of high rollers are men, the casinos exclusively hire men to fill the role of casino host. She might be interested in acting as a casino host because they make more money than she does. Moreover, in some of the high roller rooms, casino hosts, rather than cocktail waitresses, serve drinks to the high roller customers. The hosts may be cutting into her tips, but she has no way to become a host. She understands that being a host is a man's job, particularly because the hosts go with the high rollers to the strip clubs.
Nevada casinos openly and self-consciously sell sexual appeal by limiting cocktail serving jobs to women dressed in alluring outfits. While they do not advertise the jobs as exclusively for women, they hire women exclusively as cocktail servers and men exclusively as casino hosts. (19) The market is well-established, and locals accept these hiring practices as the natural order of things. Like our fictitious cocktail server, locals cannot imagine a man serving cocktails. What would he possibly wear? What man would want that job? Remarkably, while cocktail servers have challenged the high heel requirement and the differential treatment of pregnant women who serve cocktails, it appears that no man has ever challenged the casinos for failing to hire him as a cocktail server. In fact, men do not apply for these jobs. (20) However, men do serve cocktails at the pools of some casinos. One cocktail server explained that men are permitted at the pool but not on the casino floor because the inside of the casino is more "formal" and the pool is more "informal." (21)
Las Vegas casinos are extremely concerned about the proper "look" of their casinos and employees. The majority of casino employees wear uniforms which vary in style and color with the job. The concept is that a visitor can distinguish one type of employee from another by his or her uniform. (22) In jobs that are occupied by men and women the uniforms are almost identical. For example, in many casinos, men and women blackjack dealers wear similar attire. Even when the uniforms are similar in jobs occupied by both men and...
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