Title VII
timberlandko wrote:Its not a Title VII issue. The court determined that Jespersen could not assert a cause of action under Title VII. The employee's gender was not an issue; the issue was the employee's non-compliance with a clearly stated employee dress code. The employee was offered equivalent non-public contact employment - same hours, benefits, etc, and the employee chose not to avail herself of the opportunity. The employee decided to get herself fired. Her choice, all around.
You are wrong. The Jespersen case is a case concerning a Title VII issue.
You are wrong. Jepersen's gender was an issue.
You are wrong. The employer's requirement that female employees wear make up is unlawful disparate treatment based on gender and unlawful sex stereotyping wherein the employer falsely believes that women who wear make up are superior employees to women who do not wear make up.
You are wrong. The employer's discriminatory policy was NOT the female employee's choice.
See
DARLENE JESPERSEN v. HARRAH’S OPERATING COMPANY, INC.
Quote:Plaintiff Darlene Jespersen, a bartender at Harrah’s Casino in Reno, Nevada, brought this Title VII action alleging that her employer’s policy requiring that certain female employees wear makeup discriminates against her on the basis of sex . . . .
Title VII prohibits employers from discriminating against “any individual with respect to . . . compensation, terms, conditions, or privileges of employment, because of such individual’s . . . sex.” 42 U.S.C. ยง 2000e-2(a)(1). In order to prevail on a Title VII disparate treatment sex discrimination claim, an employee need only establish that, but for his or her sex, he or she would have been treated differently. UAW v. Johnson Controls, Inc., 499 U.S. 187, 200 (1991) (citing Los Angeles Dep’t of Water & Power v. Manhart, 435 U.S. 702, 711 (1978)). . . .
[Ninth Circuit applies "Unequal Burdens Test" to to gender-differentiated dress and grooming requirements.]
In order to evaluate the relative burdens the “Personal Best” policy imposes, we must assess the actual impact that it has on both male and female employees. In doing so we must weigh the cost and time necessary for employees of each sex to comply with the policy.
BUT SEE
PRICE WATERHOUSE v. HOPKINS, 490 U.S. 228 (1989):
In order to obtain a partnership position, Hopkins was advised that she should "walk more femininely, talk more femininely, dress more femininely,
wear make-up, have her hair styled, and wear jewelry."
The Hopkins case, just like the Jespersen case, was a disparate TREATMENT case (not a disparate impact case). The Supreme Court held:
Quote:. . . As these examples demonstrate, our assumption always has been that if an employer allows gender to affect its decision-making process, then it must carry the burden of justifying its ultimate decision. We have not in the past required women whose gender has proved relevant to an employment decision to establish the negative proposition that they would not have been subject to that decision had they been men, and we do not do so today. . . . .
As for the legal relevance of sex stereotyping, we are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group, for "`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.'" Los Angeles Dept. of Water and Power v. Manhart, 435 U.S. 702, 707 , n. 13 (1978), quoting Sprogis v. United Air Lines, Inc., 444 F.2d 1194, 1198 (CA7 1971).
In a disparate TREATMENT case, Hopkins was able to show that she was not promoted to a partner because her employer used sex stereotypes and told her that she should "walk more femininely, talk more femininely, dress more femininely,
wear make-up, have her hair styled, and wear jewelry."
Likewise, in the Ninth Circuit, the Jespersen case was also a disparate TREATMENT case. She was NOT required to put forth a disparate IMPACT case nor was she required to establish the negative proposition that she would not have been subject to the decision had she been men nor was she required to meet an "unequal burdens" test.
This was a disparate TREATMENT case; not a disparate IMPACT test. And yet, the Ninth's Circuit's application of an "unequal burdens" test turned this disparate treatment case into a disparate impact case and then took the BFOQ exception and watered it down into meaningless puddle.
But for the Ninth Circuit's use of the "unequal burdens" test, this disparate treatment case would be no different that the U.S. Supreme Court disparate treatment case wherein Hopkins was able to show that an employment decision was based on unlawful gender discrimination.
timberlandko wrote:Yet another - and so far in this discussion unaddressed - inconvenience to Jespersen's case is the plain and simple fact that Nevada is an "At-Will Employment" state. Absent conractual provision to the contrary, which in this instance did not pertain, neither employer nor employee is required to offer any reason or justification for termination of employment. Subject to certain clearly defined public policy provisions, an employer may freely terminate any employee for any - or no - reason.
FYI: Title VII is the Supreme Law of the Land. It trumps state law. Unlawful discrimination is an exception to the "at will" employment doctrine. An employer in an "at will employment" state can no more fire an employee because she's a woman (who refuses to wear make up when wearing make up is not a BFOQ) than it could fire an employee because of his/her race.
I don't think it's unreasonable for an employer providing a certain service to expect employees to conform to their expectations. Before you jump on me though...
:wink:
