Anti-Feminist Anger

[Guest Raidne]

Really? I know that some dress codes will require men to have short hair but I was always taught that the rule of thumb is the older you (a woman) get, the shorter the hair in a professional environment.

Think more along the lines of flight attendants and casino employees.

The reason why women tend to have more dress code options then men in some areas is because because men are far less sympathetic then woman in discrimination lawsuits.

Where do you get this stuff?

In actuality, it depends what Court you're in front of. In front of the 6th Circuit, I guarantee you (because I've seen it happen), the bench will be more sympathetic to the reverse discrimination suit, and in the front of the 9th, the regular discrimination suit. This is because conservative courts tend to disagree with the existence of Title VII, because it controls actions by private industry, which is otherwise outside of the state's power, and liberal courts tend to be in favor of the exercise of government authority to end discrimination even when it interferes with the private sector.

Also, there tend to be more suits with female plaintiff on dress code issues because the codes require some extra effort by the female employee, while the male dress codes are just restrictive. Most dress code cases are brought by women who don't want to be required to wear a full face of make-up to work, or wear their (long) hair down (see, e.g. Harrah's Casinos). These codes have been upheld on the basis that the same dress codes required men to have short hair and prevented them from wearing make-up, and that holding, IMO, sucks.

Those things are not equal - one requires an expenditure of time and money and the other does not.

[john]

The dress code issue is an interesting one. The effect of it would appear to be discrimination against men, as women generally get wider choices of clothing and hairstyle, but the cause of it is another matter. Why, after all, are men (at the very least) looked askance at for wearing skirts, or wearing pink, or too much jewellery, or fancy haircuts... or, say, knitting, or doing embroidery, or reading romance novels, or any other stereotypical "female" pursuits? Can it really be any reason other than the fact that girly stuff is seen as unmanly and therefore inferior?

Exactly. The fact that male dress codes are often stricter says to me that we don't care as much what women wear. They need their fripperies, bless them. Men have to dress proper.

[Mentat]

Also, there tend to be more suits with female plaintiff on dress code issues because the codes require some extra effort by the female employee, while the male dress codes are just restrictive. Most dress code cases are brought by women who don't want to be required to wear a full face of make-up to work, or wear their (long) hair down (see, e.g. Harrah's Casinos). These codes have been upheld on the basis that the same dress codes required men to have short hair and prevented them from wearing make-up, and that holding, IMO, sucks.

While I don't disagree with the objective unfairness of the situation, these are very specific jobs which mainly require the people working in them to look attractive. The current cultural construct of attractiveness does require women to wear make-up and men not to, but it was hardly invented by Casinos, and it would surely be a competitive disadvantage for them to ignore it.

As a more-or-less amusing sidenote, a friend of mine plays the double bass, and always complains that he's required to wear expensive smoking suits during performances, while women can get away with wearing anything black.

[Guest Raidne]

While I don't disagree with the objective unfairness of the situation, these are very specific jobs which mainly require the people working in them to look attractive. The current cultural construct of attractiveness does require women to wear make-up and men not to, but it was hardly invented by Casinos, and it would surely be a competitive disadvantage for them to ignore it.

The particular suit was brought by a 45 year old lesbian bartender with a 15 year employment history (and a perfect record) who had very short hair and wore a tuxedo instead of an dress to work. She was forced to go through a "glamour makeover session" and other indiginities that I won't even get into.

But the real issue is that "consistent with cultural constructs" is not the test for discrimination. That would sort of, you know, defeat the whole purpose wouldn't it, seeing as discrimination is consistent with cultural constructs? Jesus.

Instead, you have to assess whether or not the standards are equal. And negative and positive restrictions do not balance out when one requires an expenditure of time and money and the other does not.

ETA: FYI, the case is Jespersen v. Harrah's Operating Co., if anyone is interested. The precedent it slaps in the face is the famous Price Waterhouse v. Hopkins case.

[Tempra]

Think more along the lines of flight attendants and casino employees.

Where do you get this stuff?

In actuality, it depends what Court you're in front of. In front of the 6th Circuit, I guarantee you (because I've seen it happen), the bench will be more sympathetic to the reverse discrimination suit, and in the front of the 9th, the regular discrimination suit. This is because conservative courts tend to disagree with the existence of Title VII, because it controls actions by private industry, which is otherwise outside of the state's power, and liberal courts tend to be in favor of the exercise of government authority to end discrimination even when it interferes with the private sector.

Also, there tend to be more suits with female plaintiff on dress code issues because the codes require some extra effort by the female employee, while the male dress codes are just restrictive. Most dress code cases are brought by women who don't want to be required to wear a full face of make-up to work, or wear their (long) hair down (see, e.g. Harrah's Casinos). These codes have been upheld on the basis that the same dress codes required men to have short hair and prevented them from wearing make-up, and that holding, IMO, sucks.

Those things are not equal - one requires an expenditure of time and money and the other does not.

To what extent has Harrah's ruling been extended outside the entertainment industry? The entertainment industry obviously, and rightfully so, has a vested interest in being able to force its employees to wear specific uniforms, be it makeup for women or erect phalli for men.

I can't imagine that Harrah's ruling would permit a law firm to require women to wear smoky eyes and a bumpit.

p.s. I don't necessarily agree with what happened to Jesperen, but the Harrah's ruling isn't that controversial if limited to the entertainment industry.

[Guest Raidne]

To what extent has Harrah's ruling been extended outside the entertainment industry? The entertainment industry obviously, and rightfully so, has a vested interest in being able to force its employees to wear specific uniforms, be it makeup for women or erect phalli for men.

I'm not clicking on that at work, but I'm guessing it has to do with a case where the defendant argued a bona fide occupational qualification (BFOQ), as would be done for, say, Vegas Showgirls. Harrah's was free to make that argument, but did not, and instead rested their argument on actual equality.

I mean, I can see why, since Jespersen's excellent customer service ratings didn't really support the notion that make-up on women (i.e. treating men and women disparately) was a BFOQ for being a bartender at Harrah's.

But, just for our own information/sake of argument, I did a quick Westlaw search, and I've got Jespersen cited for support on dress codes in the following cases:

(1) Two cases of male to female transsexuals being terminated for failing to comply with the male dress code (employers: Library of Congress and Family Express)

(2) Heartland Inns of America terminates a "guest services representative" after discipling her for not having that "midwestern girl look."

(3) Comments about female employee's hair and make-up by supervisor who routinely sexually harassed female employees justified as criticism related to non-compliance with dress code at Dave Smith Motors(just so we're clear, here is the court's description of the harassment: Plaintiff's allegations of verbal or physical conduct of a sexual nature is limited to Oris's three invitations to Plaintiff at the beginning of her employment, two comments to Plaintiff's coworkers that Plaintiff must be having sex with two male employees because she had been spending time with them, the photograph she saw of Orsi with his finger through the zipper of his pants, rubbing the thigh of a female employee in front of her, a coworker being uncomfortable with Orsi touching her, Orsi's comment about a woman's chest and his bragging about his sexual exploits to other employees that were related back to Plaintiff)

(4) Southeastern Pennsylvania Transportation Authority ordered Rastafarian male employee to cut his dreadlocks, and suspended him without pay for refusing to do do (this plaintiff lost on sex discrimination, but won on religious discrimination)

It's just always really hard to predict how this stuff will ultimately play out.

ETA: The vast majority of case precedent on this subject was litigated before the Jespersen case and is about flight attendants (and often weight requirements).

[Blaine]

That response fails. "Goofy" is subjective, and "intrinsically" is absolute. As a matter of sheer, direct logical phrasing they cannot be coupled.

Your sense of humor fails.

[Acid Rainbow]

I agree with MinDonner's posts. They only reason why men are forced into narrow gender roles is because anything else would be seen as gay and unmanly. Not for practical reasons.

I also found out that many women sentenced to death in the US are pardoned and have their sentences commuted to life in prison, while men are disproportionately executed. Someone argued that this was sexist against women, because the male judges immediately felt protective of female convicts. Make of that whatever you want...

[Mentat]

The particular suit was brought by a 45 year old lesbian bartender with a 15 year employment history (and a perfect record) who had very short hair and wore a tuxedo instead of an dress to work. She was forced to go through a "glamour makeover session" and other indiginities that I won't even get into.

That seems extremely mean if they decided to hire her in the first place.

But the real issue is that "consistent with cultural constructs" is not the test for discrimination. That would sort of, you know, defeat the whole purpose wouldn't it, seeing as discrimination is consistent with cultural constructs? Jesus.

What I mean is that an establishment that hires young and pretty women to bartend etc. and discriminates in favor of them over older or less attractive women should be able to demand that they comply with bog standard beauty requirements like wearing make up. Of course, it could be argued that no establishment whatsoever should be able to discriminate based on looks alone, but that's an entirely different matter.

[Meg]

That seems extremely mean if they decided to hire her in the first place.

What I mean is that an establishment that hires young and pretty women to bartend etc. and discriminates in favor of them over older or less attractive women should be able to demand that they comply with bog standard beauty requirements like wearing make up. Of course, it could be argued that no establishment whatsoever should be able to discriminate based on looks alone, but that's an entirely different matter.

One of my friends worked in such a bar that hired its waitresses based on looks. Since the bar catered to older, professional males with high incomes, the owner of the bar hired only attractive females in order to draw in those males. How is that discrimination when Victoria's Secret hires its models based on looks. Can a short, overweight, unattractive female sue Victoria's Secret because they won't hire her as one of their Angels? I personally agree that a person shouldn't be a victim of dicrimination based on their looks but there are some occupations where looks are more important than gpa or the person's work experience.

[Tempra]

I'm not clicking on that at work, but I'm guessing it has to do with a case where the defendant argued a bona fide occupational qualification (BFOQ), as would be done for, say, Vegas Showgirls. Harrah's was free to make that argument, but did not, and instead rested their argument on actual equality.

I mean, I can see why, since Jespersen's excellent customer service ratings didn't really support the notion that make-up on women (i.e. treating men and women disparately) was a BFOQ for being a bartender at Harrah's.

The link is work safe. It is a link to a play where a male actor is expected to walk around with a comically large, erect penis between his legs to show his sexual frustration.

But, just for our own information/sake of argument, I did a quick Westlaw search, and I've got Jespersen cited for support on dress codes in the following cases:

(1) Two cases of male to female transsexuals being terminated for failing to comply with the male dress code (employers: Library of Congress and Family Express)

(2) Heartland Inns of America terminates a "guest services representative" after discipling her for not having that "midwestern girl look."

(3) Comments about female employee's hair and make-up by supervisor who routinely sexually harassed female employees justified as criticism related to non-compliance with dress code at Dave Smith Motors(just so we're clear, here is the court's description of the harassment: Plaintiff's allegations of verbal or physical conduct of a sexual nature is limited to Oris's three invitations to Plaintiff at the beginning of her employment, two comments to Plaintiff's coworkers that Plaintiff must be having sex with two male employees because she had been spending time with them, the photograph she saw of Orsi with his finger through the zipper of his pants, rubbing the thigh of a female employee in front of her, a coworker being uncomfortable with Orsi touching her, Orsi's comment about a woman's chest and his bragging about his sexual exploits to other employees that were related back to Plaintiff)

(4) Southeastern Pennsylvania Transportation Authority ordered Rastafarian male employee to cut his dreadlocks, and suspended him without pay for refusing to do do (this plaintiff lost on sex discrimination, but won on religious discrimination)

It's just always really hard to predict how this stuff will ultimately play out.

ETA: The vast majority of case precedent on this subject was litigated before the Jespersen case and is about flight attendants (and often weight requirements).

So it is applied seemingly across the board. That's rather unfortunate.

[Guest Raidne]

To Mentat and Meg - As I tried to explain in my last post, it is, as you'd guess, perfectly okay and legal to intentionally hire attractive employees if it's relevant to the job. The thing is, you need to lay your cards on the table and say so if that's how it's going to be. For instance, every gentlemen's club is utterly protected from discrimination suits, since hiring young, attractive women is clearly the bread and butter of the business.

The only businesses that lose on this are the ones that either choose not to make this argument for whatever BS reasons (like Hooters, who didn't raise this argument in favor of defending their status as a "family restaurant"), or the ones that can't make this argument because being female or male, or adhering to a discriminatory dress code, is not actually relevant to the issue.

The points you raise are addressed by other defenses that exist under the law already, and so, simply put, are not really an objection to the argument I'm trying to make, which is that dress code that restricts men and demands affirmative acts from women is not equal.

ETA: Tempra - yeah, if Jespersen had been decided under the BFOQ defense framework, the effect would have been limited to similar industries. It is too bad.

[Mentat]

The points you raise are addressed by other defenses that exist under the law already, and so, simply put, are not really an objection to the argument I'm trying to make, which is that dress code that restricts men and demands affirmative acts from women is not equal.

I'm not saying it's equal, I'm saying it's not discriminatory to me. An establishment that hires attractive people based, on an extent, on their looks should be able to require them to groom appropriately. Now I won't argue that this creates a situation of objective injustice because grooming standards for men and women are different and female grooming does indeed require more in terms of time and expenditure than male grooming, and I would consider favorably measures directed to redress this (pay your employee's hair parlor and beauty saloon bills, for instance), but I don't consider it discriminatory.

In a case where the way employees look is completely irrelevant to the work been done then the dress code should be appropriately lax and no grooming other than showering in the mornings should be required, no arguments from me on that front.

[Guest Raidne]

Define "discriminatory."

[Mentat]

Define "discriminatory."

Since I consider you intelligent enough not to need to look it up in a dictionary I can only assume you consider my own use of the word excessively limited, in which case it would probably be more useful if you just made your point.

[Guest Raidne]

Okay fine. Please identify the statement that you disagree with:

(1) A dress code has different standards for men and women, and these standards are not equivalent in terms of money or time expended.

(2) A dress code with different and not equivalent standards is not equal, or equivalent

(3) A dress code that is not equal or equivalent disparately effects the groups of men and women

(4) When a policy leads to a disparate effect on the members of the groups "men" and "women" it discriminates on the basis of sex/gender.

[Mentat]

Okay fine. Please identify the statement that you disagree with:

(1) A dress code has different standards for men and women, and these standards are not equivalent in terms of money or time expended.

(2) A dress code with different and not equivalent standards is not equal, or equivalent

(3) A dress code that is not equal or equivalent disparately effects the groups of men and women

(4) When a policy leads to a disparate effect on the members of the groups "men" and "women" it discriminates on the basis of sex/gender.

Hmmm.... My first inclination was to say that number 4 is not necessarily true, though as far as semantics go I could be putting my foot in my mouth. Surely there are many policies that are discriminating as per that definition yet we accept them provided there's an adequate rationale?

[Guest Raidne]

Hmmm.... My first inclination was to say that number 4 is not necessarily true, though as far as semantics go I could be putting my foot in my mouth. Surely there are many policies that are discriminating as per that definition yet we accept them provided there's an adequate rationale?

Like, say, when there is a bona fide occupational qualification?

I have come to the conclusion that you are either (1) not reading my posts at all or (2) actually just trying to piss me off by pretending to be too daft to notice things I have already said. Twice. I think the latter is more likely.

I'm done.

[Edda van Heefmstra Ruston]

I think (though I could easily be wrong) that in this case it's actually a variant of 1. Or else: reading them but not connecting that Harrah's did NOT use the BFOQ test, and therefore arguing that BFOQ => certain discrimination's okay is NOT applicable here.

Mentat - when determining how mean the makeover was, also consider that she had been working for Harrah's for almost 20 years at the time they introduced the makeup requirement. (She actually agreed to the initial conditions of the "Personal Best" program; it was changing makeup to a requirement to which she objected.)

[Alexia]

I have to say that I would never consider working for a business that attempted to impose an identical dress code on me as a male (assuming something along the idea of pants only, short hair, no jewelry). On the other hand, my current place of employment imposes different standards on me than the men (namely, I am required to wear cocktail dresses to our special events whereas the men are expected to wear suits and ties) and I don't consider it to be discriminatory at all.