January 04, 2005

Jesperson Doesn't Face Gender Discrimination

This editorial in the Sacramento Bee strongly disagress with the 9th Circuit's recent ruling in Jesperson v. Harrah's. What was the case about?

"Harrah's Casino in Reno fired a bartender with a stellar 20-year work record because she refused to follow a new 'Beverage Department Image Transformation' policy requiring women to wear stockings, lipstick, foundation, blush, mascara and nail polish. They must fix their hair 'teased, curled, or styled'. In contrast, men merely have to be clean and neat in appearance."

A panel of the 9th Circuit held that Harrah's policy isn't discriminatory. The vote was 2-1. Would they have held the same if halter tops were involved? How about corsets? I agree with the paper. This decision is very troubling.

Oh, for what it's worth, the judges who supported this were Barry Silverman, a Clinton appointee who's usually considered one of the circuit's moderate or conservative judges, and, hold on to your hat, Wallace Tashima, a Carter appointee who's usually considered one of the leading liberals on that supposedly left-wing circuit. Judge Sidney Thomas dissented.

Posted by armand at January 4, 2005 03:36 PM | TrackBack | Posted to Law and the Courts


i'll track down the opinion later today, if i can make some time, but my guess is that halters would almost certainly survive the same scrutiny, and corsets, while presenting a closer case due to their potential health effects, might as well.

again, without reading anything, i fear the sacramento bee has fallen prey to a common misunderstanding about what sort of private conduce anti-discrimination laws reach. and where, as i suspect is true in this case, precedent is clear, it's not surprising that liberals who might find the policy itself odious stay their hands. notwithstanding popular misconceptions, most judges (on both sides of the political fence) follow precedent where precedent is clear; only the marginal ideologues (of whom there are blessedly few, notwithstanding bush's efforts to change that) will openly flout the law.

Posted by: joshua at January 5, 2005 11:10 AM | PERMALINK

Well, liberals aren't going to always vote their politics, much like conservatives aren't going to always do that. But it stikes me that Tashima is the kind of guy who'd really be troubled by this (concerned with equal protection issues) - I mean I don't see how you can't say that this requires women to put in a good deal of extra time in order to keep their job that men don't have to put in (the halters and corsets thing was sort of a joke - in and of themselves I think you are right Joshua).

Posted by: Armand at January 5, 2005 01:57 PM | PERMALINK

if that were true, however, then one would be able to mount a suit based on behavior suggesting that women who don't wear make-up don't advance at a given company. that sort of case doesn't hold much water, even if it should. again, i'll definitely print out the case today and bring it home.

Posted by: joshua at January 6, 2005 11:42 AM | PERMALINK
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