Analysis of the Humpty Dumpty decision
from Jespersen attorney Jenny Pizer
Addendum to the 4-16-2006 Barbwire, "Humpty Dumpty justice"


Date: Fri, 14 Apr 2006 22:31:01 -0700

Hi everyone. We received disappointing news from the Ninth Circuit en banc panel today, though not without some silver lining.

HITTING THE BRICKS & HARRAH'S, TOO (Reno, 2-16-2001) — Left to right, cocktail servers Nancy Standley, Leslie Williams and Kricket Martinez, bartender Darlene Jespersen and security guard Tom Stoneburner demonstrate against debilitating high heels and other worker-brutalizing policies, such as those which cost Jespersen her job. She attended the June 15, 2001, cocktail server protest in front of the Venetian Hotel on the Las Vegas Strip and filed major civil rights litigation against Harrah's on July 6, 2001.

Chief Judge Mary Schroeder wrote the majority opinion affirming the district court's grant of summary judgment against Darlene. Like the panel majority opinion of December 2004, she concludes that there wasn't enough evidence (e.g., re cost and time of makeup, re discriminatory intent to impose sex stereotypes, re objective measures of the burden on female employees, re how the makeup tended to lead to sexual harassment, re how it interferes with their ability to do the job, etc) to create a triable issue regarding the alleged burdens imposed on women by Harrah's makeup requirement.

She determines that Harrah's entire appearance policy must be considered as a whole (thus, one must compare the burden of makeup and teased/styled/curled hair for women with washed face and clipped hair for men), and in this case includes the bartenders' uniform, which is largely, in her word, "unisex." This approach seems somewhat inconsistent with the approach she took when authoring the 9th Circuit's 1982 en banc decision in Gerdom, which found Continental Airlines' weight policy to violate Title VII, without considering all the other elements of the airlines' appearance rules. It may highlight correctly the greater discrimination inherent in Harrah's requirement that female cocktail servers wear not only makeup (like the bartenders) but also skirts and high heels, while balancing their trays among tipsy, randy casino guests.

This leads to the aspect of the decision that actually is a step forward.

The majority "hold[s] that appearance standards, including makeup requirements, may well be the subject of a Title VII claim for sexual stereotyping." (Slip op. at p. 4121.) The prior case law had tested appearance codes only to ascertain whether they imposed an unequal burden on either men or women, and had assumed that there is no sex discrimination in sex-differentiated dress policies as long as female and male employees are constrained by stereotypes to an equal extent. The Schroeder opinion recognizes that stereotypes can be burdensome, and forcing compliance with them can violate Title VII if the burden is heavy enough; thus, under this analysis, an employer no longer can avoid Title VII liability by "balancing" the burden on one gender with an "equally" restrictive stereotype for employees of a different gender.

In addition to confirming that the sex stereotyping doctrine is not restricted to harassment cases, the opinion also offers multiple suggestions for how future cases may show that impermissible sexual stereotyping has occurred (relying mainly on our arguments, the logic of which the majority in large part accepts, though declining to follow them to rule in Darlene's favor). Thus, in future cases, plaintiffs may be well advised to seek out evidence detailing the burdens re cost, time and physical restrictiveness. It also may be helpful to try to provide an "objective" assessment of an appearance rule's burdens on female (or male) employees generally, to confirm the reasonableness of a particular plaintiff's testimony about the subjective impact upon her.

Some of the majority's suggestions seem odd. For example, as Judge Kozinsky points out in his dissent, it is peculiar to think that expert testimony would be required to confirm what people on the jury are perfectly capable of perceiving on their own. Most people called to serve on a jury will have either applied makeup personally or watched others doing so, at least enough to know that it takes time to do it properly. He also pointed out that, although some women are sufficiently accustomed to wearing makeup to think it's no big deal, his exposure to it leads him to conclude that reasonable jurors easily could agree with Darlene that those NOT accustomed to makeup could feel demeaned to an extent that it would impair their ability to work. He offered that he probably would feel that way if required to wear makeup when taking the bench.

It's curious also that the majority faulted Darlene's case for not presenting more evidence "that the challenged policy was part of a policy motivated by sex stereotyping." While it certainly would have been helpful to have direct evidence of exactly what Harrah's executives had in mind when deciding to require makeup for women (as Ann Hopkins had from the performance reviews her former Price Waterhouse colleagues had written), the details of the sex-based requirement are plain in the text of the makeup policy and Harrah's stated its intention both in its policy and through its expert. In the company's view, female beverage servers cannot look professional unless they alter their faces to achieve the company-approved, multi-element "look."

It is helpful to have this exploration of the types of evidence that may be used in future cases to show actionable different treatment through a dress code that imposes sex stereotypes. Of course, Darlene's trial counsel would have benefited from having this guidance as he was opposing the summary judgment motion in the district court. But, as it had not been established that the sex stereotyping doctrine could be applied against an oppressive dress code, it was even less clear how such a claim should be proved.

That said, there are two dissents by four judges who agree that there was ample evidence in this record to shift the burden to Harrah's to show the business necessity for forcing women to wear all that makeup. First is a good, clear dissent by Judge Pregersen (joined by Kozinski, Graber and Fletcher), agreeing with the majority that there wasn't enough evidence to show a triable fact issue re a greater burden on women bartenders, but concluding there was ample to show that the policy imposed a sex stereotype of a sort that can violate Title VII.

Following that is an excellent, common sense dissent by Judge Kozinski (joined by Judges Graber and Fletcher) who agreed with us on both theories. In addition to joining Judge Pregerson's opinion, he wrote separately that (as noted above) it doesn't require an expert to know that it costs more money and time to use makeup than to not use makeup, and that each of Harrah's grooming requirements was equally or more burdensome for women, for an overall unmistakably more burdensome policy. As usual, his writing style is clear, pointed and funny.

Given the majority's evidentiary roadmap for future cases, and the dissents' explanations of why this record showed plenty clearly a sex-based burden that requires company justification, the opinions taken together seem to have moved the case law forward in ways that will make future challenges to stereotypical dress and grooming codes easier to win. This seems especially important for the millions of women in service sector jobs where sex-specific uniforms are common, and women routinely are required to wear heels and skirts and otherwise to present themselves in ways that can make it physically harder to do their jobs, and also mark them as members of the female class of workers rather than the male class, with all the restrictive, subordinating effects that may bring. It will be for lawyers preparing the cases to come to develop ways to document those effects more extensively.

Darlene has been courageous and determined throughout this struggle with Harrah's. I don't know anyone else who would have stayed the course through the financial hardship she has endured to press this case. It's beyond frustrating and just plain wrong that the majority denies her the day in court that the dissenting judges agree she should have, while agreeing with her that dress codes are not exempt from the law against sex stereotyping and that reasonableness — the quintessential jury question — is a key part of the analysis.

Although this result is deeply dissatisfying, we have made some progress. Many of you contributed in invaluable ways to that, and we are very grateful. The amici briefs both to the three-judge panel and to the en banc panel were incredibly important. Hearty thanks also to those who participated in the moots.

Most of all, warmest thanks to our much-missed former Lambda Legal colleague Jennifer Middleton, who was dedicated to this case for such a long time, and who did incredibly good work on our first round of briefs. And likewise to Jon Davidson, our extraordinary Legal Director, whose insights have helped to shape each positive aspect of our work on the case.

Jennifer C. Pizer
Senior Counsel
Lambda Legal Defense & Education Fund
Western Regional Office
3325 Wilshire Boulevard, Suite 1300
Los Angeles, CA 90010-1729
ph: 213.382.7600 ext. 223
fax: 213.351.6050

Smoking Guns

Back to Humpty Dumpty justice,
BARBWIRE April 16, 2006


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