Academic journal article Duke Journal of Gender Law & Policy

Foreword: Making Makeup Matter

Academic journal article Duke Journal of Gender Law & Policy

Foreword: Making Makeup Matter

Article excerpt

I. THE TRIVIALITY OF MAKEUP

A number of our colleagues responded to the news that we were hosting a conference on makeup and employment discrimination with incredulity. What does one have to do with the other? Surely, issues of makeup and dress are trivialities--aesthetic personal choices that reside beyond the remedial reach of anti-discrimination law. Surely, an employer is free to formalize dress and appearance standards. Many of us might think it silly for an employer to do so, several of their arguments ran, particularly because, in most employment settings, the market would disfavor the practice. But "silly" and "illegal" are not the same thing. Thus the question: Why devote an entire day to an ordinary, personal, and seemingly "natural" self-presentational activity that so many women perform? Asked another way, why a conference on makeup--and why within the halls of the Duke University School of Law?

To us, Duke was a particularly appropriate location for this conference. More than a decade ago, Katharine Bartlett, currently Dean of Duke Law School, authored a foundational article on discrimination based on appearance choices. (1) The article made a big splash, provocatively raising the question of whether discrimination claims based on dress and appearance standards are cognizable under Title VII, the federal law that prohibits discrimination on the basis of, among other aspects of identity, race and sex. For the most part, courts had answered that question with a resounding "no." And to a large extent, their reasoning centered on two ideas: (1) that employers have broad latitude to define the professional boundaries of their workplaces and that grooming standards are a reasonable way for them to do precisely that; and (2) that Title VII protects identity characteristics that are immutable (for example, phenotype) or that implicate a fundamental right (for example, marriage). Dean Bartlett's article challenged both ideas and in the process helped to generate an entire body of literature that explores the nexus between sex discrimination, on the one hand, and dress and appearance standards, on the other.

Dean Bartlett's article has once again returned to the limelight, thanks in no small part to the Ninth Circuit case, Jespersen v. Harrah's Operating Co. (2) The case involved a female bartender, Darlene Jespersen, who Harrah's Casino effectively terminated because she refused to comply with the casino's mandatory makeup rule. Dean Bartlett found herself on both sides of the dispute; both the defendant and the plaintiff cited her article. More than that, her work figures prominently in every subsequent article on the case. The conceptual and doctrinal purchase of Dean Bartlett's work, and her role in shaping how dress and appearance cases are litigated, made Duke Law School a particularly appropriate site for engaging this topic.

But that still begs the question of why a conference on makeup and grooming in the first place. Why an investment in making makeup matter? The existence of a body of cases in which plaintiffs invoke an employer's grooming policy to ground their discrimination claim does not, without more, establish the importance of those cases. Why should we care about makeup and other dress and appearance standards? What, finally, is at stake?

The Jespersen case provides at least a partial answer. Trivial though the subject of makeup supposedly is, the Jespersen litigation garnered an enormous amount of attention as it wound its way from the district court, to a three-judge panel of the Ninth Circuit, and then to the Ninth Circuit en banc. Indeed, even before this conference was held, several articles, notes, and comments had been written about this case. This attention standing alone would seem to suggest that makeup--which appears to be such a simple little thing--might not be so simple after all. Bound up in Darlene Jespersen's refusal to wear makeup is a broader question about identity performance: Can an employer require its employees to engage in gender normative behavior by requiring them to, among other things, comply with a specific set of grooming requirements, such as the makeup regimen that Harrah's imposed on its female bartenders? …

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