Academic journal article Duke Journal of Gender Law & Policy

What Do Unions Do about Appearance Codes?

Academic journal article Duke Journal of Gender Law & Policy

What Do Unions Do about Appearance Codes?

Article excerpt

I. INTRODUCTION

Most of the legal scholarship analyzing employers' discretion to impose appearance codes focuses on whether antidiscrimination law, particularly Title VII, limits that discretion. (1) Much less attention had been paid to the role that labor law and collective bargaining might play. (2) My intention here is to show how that body of law can offer employees important protection from employer overreaching. (3)

One way to begin is to compare the legal options available to 1) Darlene Jespersen when she objected to her employer's required appearance code, and 2) Renee Gaud and Trisha Hart--cocktail servers at the Borgata Hotel Casino and Spa in Atlantic City--when they objected to their employer's appearance code. Thanks in part to the work of Mitu Gulati, Devon Carbado, and Gowri Ramachandran, many of the elements of the Jespersen case are now well-known. (4) Darlene Jespersen, a bartender at Harrah's Casino in Reno, Nevada, challenged her employer's decision to enforce a policy that required female--but not male--employees to wear makeup and style their hair. In a lawsuit filed in federal court, she claimed that her discharge for failing to comply with that policy constituted illegal discrimination under Title VII. (5) The Ninth Circuit ultimately determined that Harrah's was entitled to summary judgment. (6) Less well-known is that Jespersen also filed suit against Harrah's in Nevada state court claiming that the discharge constituted a breach of an implied employment contract she had with Harrah's. In rejecting that claim, the Supreme Court of Nevada ruled that her allegations were not enough to overcome her status as an at-will employee whose discharge was not subject to a contract-based challenge. (7)

In contrast, Renee Gaud and Trisha Hart worked as cocktail servers at the Borgata Hotel Casino and Spa in Atlantic City, New Jersey. (8) Unlike Darlene Jespersen, they were union employees represented by the Hotel Employees and Restaurant Employees International Union, Local 54, and thus were not at-will workers. (9) Gaud, Hart, and other employees objected to a new Borgata policy prohibiting cocktail servers and bartenders from gaining more than seven percent of their body weight as determined by a baseline set when the policy was instituted. (10) Gaud and Hart challenged the policy in New Jersey state court on the grounds that it constituted unlawful discrimination against women under New Jersey law. (11) However, because Borgata cocktail servers and bartenders are represented by a union, they had another avenue available to challenge Borgata's policy. Their union filed grievances on their behalf claiming that certain aspects of Borgata's implementation of the policy violated the collective bargaining agreement between the parties. One grievance was settled, and the other was ultimately withdrawn. (12)

In this paper, I will first show why I assert that the statutory and contract protections available to union employees can be quite robust in the area of appearance codes, and sometimes more robust than the protections offered by other bodies of law, particularly antidiscrimination law. Second, I will respond to some critiques I anticipate of the suggestion that labor law has a significant role to play in protecting the freedom of employees to present the image they choose at work.

II. LABOR LAW, COLLECTIVE BARGAINING AGREEMENTS, AND APPEARANCE CODES

The National Labor Relations Act (NLRA), the primary statute governing union-management relations in the private sector, gives employees the right to "form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection." (13) Thus, covered employees may form a union without employer interference, and the employer is obligated to bargain in good faith with that union "with respect to wages, hours, and other terms and conditions of employment. …

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