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Article Excerpt
I. INTRODUCTION
Darlene Jespersen's struggle against Harrah's Operating Co. is a "Davida and Goliath" story: Jespersen, a determined career bartender, stood up to a mega-corporation's mandate that its female employees conform to a "uniform look"--a look that standardized women's faces to an extreme extent, even for the contrived-glamour world of Nevada gaming. Harrah's so-called "Personal Best" policy "facially" discriminated based on sex: The policy explicitly required female bartenders to "uniform" their faces, while permitting male bartenders to retain their autonomy about this most personal of attributes. By requiring female employees to alter their faces daily to conform to a stylized, company-approved feminine "look," Harrah's policy deprived women like Darlene Jespersen of basic dignity, and imposed on them added burdens of cost and time that had no equivalent counterparts for male employees.
Jespersen wore the Harrah's uniform with pride for more than twenty years. A respectful, loyal employee, she tried in good faith to wear facial makeup as Harrah's directed. But for this nearly six-foot tall, broad-shouldered woman with a down-to-earth persona, having to be "dolled up" (1) and present an artifice of femininity was a humiliating, alienating exercise, and it interfered with her ability to interact effectively with customers, especially unruly ones. Jespersen believed she was entitled to enough respect as a hard-working, dignified employee that she should not have to submit to a demeaning, gender-based contrivance when her male coworkers faced no analogous requirement. Given that the only reason she was instructed to endure a daily "makeover" was "because of [her] sex," (2) shouldn't Title VII speak up on her behalf?
This author had the privilege of representing Darlene Jespersen in her appeal to the U.S. Court of Appeals for the Ninth Circuit after the U.S. District Court for the District of Nevada entered summary judgment against her. (3) In the Ninth Circuit, a divided three-judge panel affirmed the summary judgment order. (4) On rehearing en banc, a multiply divided court again affirmed the grant of summary judgment against Jespersen. (5) Yet, even as it denied Jespersen her day in court, the en banc majority actually took a legal step forward for which Jespersen had advocated: The court acknowledged that sex-differentiated appearance codes may be challenged under Title VII if they incorporate sex stereotypes that burden workers unequally because of their sex. While it was deeply disappointing--and wrong--that the majority denied Jespersen her day in court to present her case using this framing of the test and to insist that Harrah's try to justify the unusual burdens of its policy, she takes some measure of satisfaction at the progress that was made by this case, as does this author. We both are deeply grateful to the many people who contributed in invaluable ways to its achievement. (6)
It has been an honor and a pleasure to participate in this symposium and print issue of the Duke Journal of Gender Law & Policy. To see the range of questions and perceptions inspired by this case has been a valuable and fascinating experience. It has been gratifying to see the case's connections to scholarly work in diverse yet interrelated fields--fields in which academics and advocates together are addressing the increasingly complete sacrifice of workers' personhood to competitive corporate "branding." As standardization through "branding" becomes the ever-more-dominant business theme, there is a corresponding loss of dignity and growing alienation that should trouble us all.
Lambda Legal took up Darlene Jespersen's case because restrictive, gender-based rules about personal appearance and deportment can pose particular burdens for anyone whose gender identity or expression varies from conventional stereotypes; lesbian, gay, bisexual, and transgender ("LGBT") people are disproportionately burdened by such rules. (7) Many LGBT people cannot readily conform to conventional gender stereotypes. (8) For others, simply the process of "coming out" as LGBT or "queer" gives rise to a deep critique of the artificially restrictive gender stereotypes that pervade our modern lives and shape corporate marketing campaigns. For many who come to understand themselves as naturally outside conventional gender norms, the unnatural wardrobes and artificial physical shapes of Mattel's Barbie and Ken dolls are not entirely benign.
Of course, artificial constructions of gender are not only a queer issue. The demeaning sexism at the heart of Harrah's "Personal Best" policy will matter to any woman who objects to having her natural face deemed unacceptable, especially when male faces are judged to be professional and desirable in their unaltered state. Today's question of mandated gender conformity may concern facial makeup, but the question arises within a historical continuum of dress and decorum demands that have constrained generations of women. (9) Yet, as Jespersen's "facial" challenge to Harrah's policy contended, there is nothing about women's faces that requires being "made over" any more than women's ribcages required whalebone corsets years ago, or women's feet and legs require stiletto heels today.
Periodically, American women have been blessed with determined visionaries who have put their bodies, jobs, and lives where many just put rhetoric. This Article is written to honor Darlene Jespersen, who is one of those rare and inspiring souls. Darlene is a hero without pretense. She resisted one of the wealthiest companies in America because she believes the law's promise of equal treatment for working women should mean something, and that her twenty years of exemplary service to Harrah's Casino likewise should have earned her a measure of loyalty in return. Darlene is not naive. But she does care about fairness and being treated in a respectful manner. She also believes individuals can make a difference. To this author, Darlene embodies integrity and a centered sense of self like few others. It has been a privilege and pleasure to represent her, and even more so to call her friend.
The Jespersen case has inspired extensive press and public interest. Yet, in a consistent and telling manner, pundits have mocked the case openly. Many have said or implied the issue is trivial. Even Judge Kozinski, who confirmed the case's doctrinal soundness with his signature clarity and wit, said as much. (10) Others have insinuated that Jespersen must have been a slacker, a troublemaker, or an authority-flouting attention-seeker. Only a person itching for a fight, some say, would make a federal case out of makeup.
Jespersen was no troublemaker. As Chief Justice Schroeder noted for the en banc majority, Darlene was an exemplary employee for Harrah's during her twenty-year bartending tenure. (11) Her supervisors and Harrah's guests alike volunteered steady praise for her friendly, calm, effective manner behind the Sports Bar. Jespersen just could not stomach the humiliating choice posed by Harrah's new "Personal Best" policy: transform her facial appearance according to the instructions of a consultant on a daily basis, or be deemed "unprofessional", "unacceptable", and "unfit" to tend the bar at Harrah's Reno casino. Despite the extraordinary personal cost of putting her job on the line in what is essentially a company town, Jespersen felt she had no choice. She had tried in good faith to comply when facial makeovers were merely recommended. (12) However, submitting to the artificial "dolling up" made her feel so exposed, demeaned, and alienated that she could not do her job effectively. (13) With her broad, imposing stature, Jespersen felt absurd attempting to mimic the "Barbie-doll" femininity of her more diminutive coworkers on the cocktail server staff.
Notwithstanding her stature, presence, and effectiveness behind the bar, Harrah's management decided that Jespersen could not just be another bartender among the mostly male Sports Bar crew. She had to be marked with face paint as a "lady" bartender. Henceforth, when women make their way in other male-dominated employment settings, can they analogously be spotlighted as different with pink hard hats and tool belts or pastel trench coats? This issue is trivial only if one believes that women should not expect and seek workplace dignity equal to their male coworkers.
Jespersen was courageous to explain why the critics are wrong, and to spotlight the gratuitous insult of a rigid, heavy-handed policy that was despised by many Harrah's employees--although no others would risk unemployment to challenge it. It is a disappointing statement about the state of Title VII law that Jespersen was denied even the right to insist that Harrah's show a genuine business need for requiring her to be branded according to her sex. As the three different dissenting opinions make manifestly clear, there is no cogent way to reconcile Harrah's treatment of Jespersen with Title VII's command that employment opportunities shall not diminish "because of sex." It is hard not to see the en banc majority opinion as a betrayal of the Supreme Court's clarion proclamation of a quarter century ago that, "[i]n forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes." (14) Indeed, in its last en banc consideration of a sex-based appearance code, the Ninth Circuit itself reiterated this language with approval while striking down an appearance rule of a kind that was commonplace before Title VII was brought to bear against the entrenched sexism of the airline industry. (15)
Moreover, en route to striking down Continental Airline's differential weight requirements for female flight attendants, the Ninth Circuit articulated numerous, clear principles that one would have expected to guide the analysis in Jespersen's case. As one key example, the Gerdom court explained that, "[b]ecause [the employer's] facially discriminatory policy itself supplies the requisite elements of a prima facie case, we must look to [the employer's] efforts to rebut it." (16) But in Jespersen, the Ninth Circuit, again en banc, held instead that the sex-differentiated policy did not suffice and that the plaintiff should have submitted multiple other types of evidence to quantify the greater burdens on women and to confirm that reasonable women in Jespersen's position similarly would have objected, before the burden of production would shift to her former employer. (17) The inconsistency is undeniable.
What might account for the differences in approach? Do the authors of the two opinions have notably different judicial philosophies? Or was the Jespersen court bound by an intervening en banc decision? Neither of these explains it, as Chief Judge Mary Schroeder wrote the opinions in both Gerdom and Jespersen, and in both cases she wrote for the en banc court.
By its own terms at least, the Jespersen decision also is not explained by any specific needs of the gaming business in which it arose; the court did not consider the needs a casino might assert because it held that Jespersen did not make out a prima facie case of sex-based disparate treatment and, therefore, the burden never shifted to Harrah's to justify its appearance policy. (18)
Based in part on questions posed during the arguments held before the three-judge panel and the en banc court, this Article concludes that the changed composition of the federal bench probably accounts for at least some part of the Jespersen result. In the years since Congress enacted Title VII, employment discrimination cases have come to make up a considerable portion of the federal courts' dockets, to the distress of some over-burdened judges and many employers. At the same time, social attitudes about how women and men should present themselves continue to evolve. Education about gender diversity and the harms of narrow stereotypes--to which the Jespersen case continues to add--is helping to accelerate that evolution. This Article is written to add modestly to that process by sharing some of our strategic thinking, a few observations about the Jespersen decision, and two core themes for the future.
The result in this case makes a painfully simple point about the persistence of sex discrimination and the ambivalence of some judges about enforcing the federal employment discrimination statute as written. If Darlene Jespersen were male, she still would be working behind Harrah's Sports Bar. "Because of [her] sex," (19) her employment ended. To those of us who agree with Darlene that Title VII should mean what it says, Harrah's at least should have been required to show a genuine business need for showing her the door.
II. WHY THE JESPERSEN CASE HAS MATTERED FOR LGBT EQUALITY
Lambda Legal Defense and Education Fund engages in impact litigation on behalf of lesbians, gay men, bisexuals, and transgender people. Through carefully selected cases, we aim, among other things, to push society to recognize what guarantees of equality must require for LGBT individuals in a particular context. Notwithstanding the advances of modern equality jurisprudence with respect to many forms of invidious discrimination, it frequently remains the case that LGBT people are denied the legal rights and opportunities that others take for granted. This denial often is based on archaic notions of gender and sexuality rooted in Victorian-era concepts of women and men as "complementary" polar opposites. (20) Sex discrimination doctrine says much that can be helpful for challenging legal barriers based on such notions; the challenge is to plan forward steps that will prompt decision-makers to recognize and accept these principles. (21)
Impact litigation can be a powerful tool for social change. To understand fully the goals and contributions of particular cases, it helps to consider (1) why the cases were selected for litigation and (2) the social and legal context in which each was selected. Rarely are the cases we select isolated events. When they are studied after the fact, the range of potential goals sometimes is not recognized because the larger landscape collapses into one narrative--one morality tale. The fuller picture, by contrast, can reveal the aspiration to reduce a systemic problem over time, through education as well as legal reform.
In the case of Lambda Legal's representation of Darlene Jespersen, the context included the pre-existing goal of increasing legal and public understanding of the similarities and distinctions between sex, gender identity, and sexual orientation. This goal included advancing the concept that discrimination on any of these grounds is inappropriate because none of them relates to one's ability to perform at work or otherwise to contribute to society. Given the continuing lack of federal statutory protection against sexual orientation discrimination, advocates for LGBT civil rights have been mindful that the prohibitions of Title VII and Title IX against sex discrimination--including discrimination based on gender nonconformity--can be invoked against at least some of the discrimination routinely visited on LGBT people. Harrah's rigid judgment that all women bartenders must conform to a prescribed "look" exemplifies this kind of barrier to equal employment opportunities, which can ruin careers irrespective of an employee's actual or perceived sexual orientation.
In considering ways to use Title VII appropriately, advocates also have been conscious of the problem illustrated by DeSantis v. Pacific Telephone & Telegraph Co. (22) In DeSantis, the Ninth Circuit rejected the plaintiff's sex discrimination in employment claim, concluding that the gravamen of the case was sexual orientation discrimination rather than sex discrimination, apparently based on information about the plaintiff's earring and ostensibly effeminate manner. (23) The court refused to take at face value the plaintiff's sex-stereotyping claim--that allegedly he had been fired because his superiors considered him insufficiently masculine--evidently assuming from his jewelry and manner that Mr. DeSantis must have been gay and that his sexual orientation must have been the overriding factor in his dismissal from employment. (24) Many civil rights litigators have taken a negative lesson in pleading from the disappointing result in DeSantis.
The split of authority that developed concerning male-on-male sexual harassment created an analogous and similarly troubling problem for civil rights litigators. Many courts presented with complaints of such harassment seemed to become confused and irrecoverably distracted from the usual sexual harassment analysis under Title VII if either the alleged perpetrator or the alleged target of the harassment was identified as not heterosexual. As conflicting decisions proliferated, male plaintiffs often were permitted to maintain a Title VII claim for same-sex sexual harassment if they were heterosexual--or were perceived to be heterosexual--and their harasser was perceived to be gay. But if the target of the abuse was gay--or was perceived to be gay--then a claim based on the same conduct often was rejected as really a sexual orientation discrimination claim falling outside the bounds of Title VII, as in DeSantis. (25) Eventually, Oncale v. Sundowner Offshore Services (26) provided a partial resolution to the untenable division of authority, confirming that a gay person's sexual orientation does not deprive him or her of statutory protections that others enjoy. It may be noted, however, that the plaintiff in the case was not identified as gay.
Another strand of Title VII case law that LGBT civil rights advocates generally saw as warranting further development and reform was the line of authority rejecting sex discrimination claims brought by transgender employees who had been fired when it became known that they were transsexual. In these cases, the dismissal often occurred when the employees informed their employers that they were to undergo, or had undergone, sex reassignment and would be presenting henceforward as a different sex. During the 1970s and 1980s, cases brought pursuant to Title VII on behalf of such employees were rejected consistently as outside the scope of what Congress had envisioned when including "sex"...
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