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Article Excerpt
I. INTRODUCTION
Darlene Jespersen worked as a bartender at the Harrah's Casino in the hardscrabble town of Reno, Nevada. Unlike its glitzier cousin Las Vegas, Reno is anything but glitzy, with a deteriorating downtown that is thirty years past its prime. Jespersen began her career at Harrah's--now the largest casino chain in the world--as a bar back, fetching ice and cutting lemons, and was quickly promoted to bartender. Twenty years later she remained a bartender in the Sports bar, creating the kind of long-term career that is all too rare these days.
But the career Jespersen formed came to a halt when Harrah's demanded that she wear makeup. Jespersen was required to wear makeup at work, in addition to her uniform, as a part of a company initiative; but she refused to do so. Jespersen never wore makeup in or out of the workplace--she felt extremely uncomfortable doing so and also felt it was unnecessary to her job. In her own words:
I had to become a sex object. And it was only because I am a woman.... The men who worked by my side did not have to conceal their faces. Harrah's considers them professional when they look like themselves. Although it had nothing to do with mixing drinks and handling customers, keeping my job became more and more about meeting Harrah's extreme and outdated idea of what a woman should look like. (1)
When Jespersen held her ground, she was fired. So she sued Harrah's alleging that the company's makeup constituted gender discrimination in violation of Title VII. (2)
These rather straightforward facts demonstrate why this case has garnered so much attention. Here was a dedicated and, by all accounts, outstanding employee standing up for principle against a large corporate employer that imposed what appeared to be an unnecessary and--at least to Jespersen--demeaning policy. Jespersen sued without the help of a union because this particular casino was non-unionized, and she refused to budge. She refused to allow her job to turn her into something she did not want to be.
However, the law was not on her side, a fact she likely realized early on. As discussed in detail shortly, the two legal theories that Jespersen advanced failed to offer any meaningful protection. Courts have long permitted differential grooming codes for men and women so long as the codes do not impose an "undue burden" on one gender, and Harrah's code arguably treated men and women the same despite having different requirements for each. Had she desired, Jespersen almost certainly could have developed this argument in more detail, but this was the least interesting aspect of her case and one that, if successful, would not have made a major social impact.
The more far-reaching theory involved the developing law of sexual stereotyping, and here is where Jespersen staked her claim. Jespersen argued that the company's make-up requirement was premised on impermissible sexual stereotypes, effectively requiring her to meet a sexual stereotype of what a woman should look like. This claim, too, failed her, and given the context of the existing legal framework compared to the potential breadth of Jespersen's claim, I will suggest that it should have failed. Although most slippery slopes are not as slippery as they appear, this one actually was.
That is the legal face of the Jespersen case, but there are other, and in some ways, more important aspects of the claim, as well. The Jespersen case raises fundamental and difficult questions about the way in which one's identity is expressed or created in the workplace, the self we bring to work. At bottom, Jespersen's claim might be seen as a search for what Kenji Yoshino defines as authenticity, a desire to be true to one's self in and out of the workplace. (3) But the workplace is not traditionally a place for authenticity: It is a place of uniforms and conformity, a place where we go to be someone else, to perform for someone else, and a legally protectible claim to authenticity threatens to unravel the existing workplace structure.
A related subtext, one that has mostly been skirted in prior discussions of the case, involves the question of sexual orientation, namely whether Darlene Jespersen was a lesbian. One newspaper report of the case included the headline, "Lesbian Loses Dress Code Discrimination Suit," (4) even though there is nothing in the record to suggest that Jespersen was a lesbian. The Lambda Legal Defense and Education Fund--the premier civil rights litigation group for gay men and lesbians--represented Jespersen throughout most of the litigation, which in and of itself is certainly not evidence that she was gay: Lambda Legal may have taken the case because of the importance of the sexual stereotyping theory to its constituency, given that, to date, the theory has prospered primarily in cases involving gay or transgendered individuals.
Since this symposium and this case are about appearances, it is worth noting that Lambda Legal posted pictures of Darlene Jespersen in her uniform on its website, and those pictures could be seen as presenting a stereotypical image of a middle-aged gay woman. (5) There are obviously many reasons the pictures may have been presented--to humanize her, to show the effect of the makeup policy since the pictures appeared to be taken in the context of the personal best policy--but they also convey an image, and were likely intended to do so. As I will discuss further below, the pictures may provide some insight into the complexities of appearance and identity, and also indicate why we might want to pause before we stake a claim to authenticity within the workplace. When it comes to our identities, there is no escaping social norms, for we can only be authentic within the selves that society provides. (6) That, of course, does not mean that our identities are entirely socially determined, or that we cannot embrace the identities we are provided. Yet, it does mean that the quest for authenticity is always a limited one, and if it is a limited one, why would makeup provide the drawing line? How should we draw the line between who we are and who others want us to be? A better approach to issues of identity in the workplace might be to conceive of our work selves as separate from our authentic selves, acknowledging that at work, we all perform and act out of character. This leaves our identity to be more fully developed outside of work, and raises the more fundamental question: how much of ourselves do we bring to work, or should we expect to bring to work?
In this essay, I will explore the various aspects of the case, the legal, the less legal, and their intersection. I also want to stress that even though I believe the case was correctly decided, I also believe this is precisely the kind of case that needs to be brought even when the prospect of winning is low. Jules Lobel has written eloquently about cases where a losing outcome was all but certain and yet the victory was in the fight. (7) I think that Darlene Jespersen personifies that very phenomenon. She did what she should have done: She stood up for principle and never wavered. This is a law professor's dream case in so many ways, but it is also much more than that, because it forces us to confront fundamental and difficult questions about identity and the workplace, about what the workplace ought to be, and, relatedly, about who we are at work.
II. THE LEGAL STORY
The facts of the Jespersen case are rather straightforward. Darlene Jespersen had worked as a bartender for Harrah's casino in Reno, Nevada for more than twenty years when the company imposed a new dress code in most of the company's casinos. The company had always maintained dress codes, but the new policy, dubbed "Personal Best," was far more extensive and confining. Relevant to the case, the policy required women to wear makeup, and it also required the employees to meet with an image consultant to determine the appropriate application of the makeup. Jespersen refused to comply with the requirements because she found the policy revolting and demoralizing. (8) When she refused to abide by the policy, she was offered the opportunity to find another job within the company that would not involve customer contact. When she was unable to find something, she was fired, and there was no question that she was fired for her refusal to wear makeup.
Two other factors contributed to Jespersen's legal claim. As part of the company policy, men were forbidden to wear makeup and they had to keep their hair trimmed. Less relevant to the legal case (but in some ways more significant), the company also required its employees to wear uniforms, and Jespersen's uniform was--somewhat ironically--very male in appearance. She wore a white shirt with a black vest and pants, a dour outfit that seemed to clash with the makeup requirement. Jespersen, however, never objected to wearing the uniform, and certainly one of the questions lurking in the background of her claim was how the makeup requirement differed from the uniform, a question that I will return to shortly and one that is not so readily answered. Two legal theories, one interesting and one less so, were at the core of Jespersen's legal challenge, and I will take them up in turn.
A. The Unequal Burdens Test
Jespersen alleged that the company's policy discriminated against women by imposing an unequal burden on them. Of the two core theories, this one was decidedly less interesting because the law in this area was already well settled and the remedy quite limited. (9) Since the 1970s, courts have permitted employers to require different uniforms for men and women, so long as those uniforms do not impose an unequal burden on one sex or the other. (10) That burden might be in the form of differential costs, or even the time that was required to comply with the policy; it might also arise if women were required to wear an excessively suggestive outfit. (11) The latter issue was not implicated in this case, and there was no claim that the company was sexing up Jespersen in order to increase her business, a claim that would otherwise be consistent with the history of bartending. (12) Once employers opened the bartending doors to women, they realized that women could be used to induce men to enter those doors and drink by having women bartenders wear sexually suggestive outfits or flirt. It is quite likely that such a motive lay behind Harrah's policy, but it did not seem relevant in Jespersen's case, in part because, by all accounts, she had been an extremely successful bartender during her twenty-year career without the assistance of makeup.
In this instance, Jespersen's undue burden claim turned on whether the policy required more of female than it did of male employees. (13) It probably did, as the dissenting opinion of the en banc court pointed out, but Jespersen failed to develop a record on this point, a fact that doomed her claim in the eyes of the majority. (14) As a litigation strategy, failing to develop the record was quite sensible. By the time the case was in litigation, Jespersen was no longer interested in regaining her job--Harrah's had offered to reinstate her and to exempt her from the makeup requirement--she was determined to invalidate the policy altogether. If she had prevailed on the unequal burdens argument, the policy may very well have stayed in place, with the company perhaps supplying the makeup to reduce the cost burden on women. The company might also have reacted by increasing the burdens on the male employees, perhaps by requiring them to shave daily, put gel in their hair, or something along those lines. Similarly, prevailing on the undue burdens test would not have advanced the law; rather, this would have been an application of a limited but well-established legal principle. (15) Consequently, as the case progressed, the unequal burdens argument became primarily a sideshow for the far more important claim based on sex-stereotyping.
As an aside, and relevant to the subsequent stereotyping claim, it is worth noting that when the grooming cases first arose, they were not easy cases. The EEOC and some courts held that differential grooming standards violated Title VII, and the claims from men who wanted to wear their hair long appeared to be straightforward claims of sex discrimination that often included claims of stereotyping. In the leading case, Willingham v. Macon Telegraph Publishing Company, the plaintiff argued that requiring men to have short hair played on impermissible stereotypes, "since short hair is stereotypically male." (16) In order to resolve...
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