WMST GU4506 Gender Justice Professor Katherine Franke Columbia University Spring 2019
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WMST GU4506 Gender Justice Professor Katherine Franke Columbia University Spring 2019 Course Reader – Volume 2 I. The Body as a Gender Justice Project February 25th: Dress Codes § Jesperson v. Harrah’s Operating Co., 392 F.3d 1096 (9th Cir. 2004) (edited) § National Women’s Law Center, Dress Coded: Black Girls, Bodies, and Bias in D.C. Schools (2018) § Letter of Complaint Against Mystic Valley Regional Charter School, May 2017 § Pavlakis, A. & Roegman, R., How Dress Codes Criminalize Males And Sexualize Females Of Color, Phi Delta Kappan, 100 (2), 54-58 (2018). March 4th: The Pregnant Body § Trubeck v. Ullman, 147 Conn. 633 (1960) § Brief of ACLU in Griswold v. Connecticut § Litigation: ConnecticUt, in Before Roe v. Wade: Voices that Shaped the Abortion Debate Before the SUpreme CoUrt's Ruling (2d edition, 2012) pp. 163-184 March 11th: Criminalizing Pregnancy § “When ProsecUtors Jail a Mother for a Miscarriage,” New York Times, December 28, 2018 § “Federal Court of Appeals Decision Prevents Pregnant Woman’s Challenge to Wisconsin’s ‘Unborn Child Protection Act’.” National Advocates For Pregnant Women. June 18, 2018 § “Arkansas CoUrt of Appeals OvertUrns Criminal Conviction for Concealing a Birth.” National Advocates For Pregnant Women. March 14, 2018 § Anne O’Hara Bynum v. State of Arkansas. Arkansas CoUrt of Appeals. Opinion Delivered, March 14, 2018 § ConcUrrence in Anne O’Hara Bynum v. State of Arkansas. Arkansas CoUrt of Appeals. Opinion Delivered, March 14, 2018 II. Gender, Sex, and Sexual Orientation March 25th: Is Sexual Orientation Discrimination a Form of Sex Discrimination? § Brian D. Prowel v. Wise Business Forms, Inc., 579 F.3d 285 (3rd Cir. 2009) § Hively v Ivy Tech CommUnity College of Indiana, 853 F.3d 339 (7th Cir. 2017) 1076 392 FEDERAL REPORTER, 3d SERIES Darlene JESPERSEN, Plaintiff– Appellant, v. HARRAH’S OPERATING COMPANY, INC., Defendant–Appellee. No. 03–15045. United States Court of Appeals, Ninth Circuit. Argued and Submitted Dec. 3, 2003. Filed Dec. 28, 2004. Background: Female bartender at casino terminated for refusing to wear makeup sued employer for sex discrimination un- der Title VII, alleging both disparate treatment and disparate impact, and as- serted claims under state law. On employ- er’s motion for summary judgment, the United States District Court for the Dis- trict of Nevada, Edward C. Reed, Jr., J., 280 F.Supp.2d 1189, granted motion in part. Employee appealed. Holding: The Court of Appeals, Tashima, Circuit Judge, held that bartender failed to establish that grooming policy imposed greater burden on female bartenders than on male bartenders. Affirmed. Thomas, Circuit Judge, dissented and filed opinion. 2. Civil Rights O1177 Female bartender at casino who was Before: TASHIMA, THOMAS, and terminated for refusing to wear makeup, SILVERMAN, Circuit Judges. JESPERSEN v. HARRAH’S OPERATING CO., INC. 1077 Cite as 392 F.3d 1076 (9th Cir. 2004) TASHIMA, Circuit Judge: and that wearing makeup actually inter- Plaintiff Darlene Jespersen, a bartender fered with her ability to be an effective at Harrah’s Casino in Reno, Nevada, bartender (which sometimes required her brought this Title VII action alleging that to deal with unruly, intoxicated guests) because it ‘‘took away [her] credibility as her employer’s policy requiring that cer- an individual and as a person.’’ After a tain female employees wear makeup dis- few weeks, Jespersen stopped wearing criminates against her on the basis of sex. makeup because it was so harmful to her The district court granted summary judg- dignity and her effectiveness behind the ment for Harrah’s, holding that its policy bar that she could no longer do her job. did not constitute sex discrimination be- Harrah’s did not object to Jespersen’s cause it imposed equal burdens on both choice not to wear makeup and Jespersen sexes. We have jurisdiction pursuant to continued to work at the sports bar and 28 U.S.C. § 1291, and we affirm. receive positive performance reviews for over a decade. I. In February 2000, Harrah’s implement- The following facts are undisputed. ed its ‘‘Beverage Department Image Darlene Jespersen was a bartender at the Transformation’’ program at 20 Harrah’s sports bar in Harrah’s Casino in Reno, locations, including its casino in Reno. The Nevada, for nearly 20 years. She was an goal of the program was to create a ‘‘brand outstanding employee. Over the years, standard of excellence’’ throughout Har- Jespersen’s supervisors commented that rah’s operations, with an emphasis on she was ‘‘highly effective,’’ that her atti- guest service positions. The program im- tude was ‘‘very positive,’’ and that she posed specific ‘‘appearance standards’’ on made a ‘‘positive impression’’ on Harrah’s each of its employees in guest services, guests. Harrah’s customers repeatedly including heightened requirements for praised Jespersen on employee feedback beverage servers. All beverage servers forms, writing that Jespersen’s excellent were required to be ‘‘well groomed, ap- service and good attitude enhanced their pealing to the eye, be firm and body toned, experience at the sports bar and encour- and be comfortable with maintaining this aged them to come back. look while wearing the specified uniform.’’ In addition to these general appearance Throughout the 1980s and 890s Harrah’s standards applicable to both sexes, there encouraged its female beverage servers to were gender-specific standards for male wear makeup, but wearing makeup was and female beverage servers. Female not a formal requirement. Although Jes- beverage servers were required to wear persen never cared for makeup, she tried stockings and colored nail polish, and they wearing it for a short period of time in the were required to wear their hair ‘‘teased, 1980s. But she found that wearing make- curled, or styled.’’ Male beverage servers up made her feel sick, degraded, exposed, were prohibited from wearing makeup or and violated. Jespersen felt that wearing colored nail polish, and they were required makeup ‘‘forced her to be feminine’’ and to to maintain short haircuts and neatly become ‘‘dolled up’’ like a sexual object, trimmed fingernails.1 1. The text of the appearance standards pro- sess the ability to physically perform the vides, in relevant part, as follows: essential factors of the job as set forth in the All Beverage Service Personnel, in addition standard job descriptions. They must be to being friendly, polite, courteous and re- well groomed, appealing to the eye, be firm sponsive to our customer’s needs, must pos- and body toned, and be comfortable with 1078 392 FEDERAL REPORTER, 3d SERIES Harrah’s called its new appearance stan- Shortly thereafter, however, the ‘‘Per- dards the ‘‘Personal Best’’ program. In sonal Best’’ standards were amended such order to enforce the ‘‘Personal Best’’ stan- that in addition to the existing appearance dards, Harrah’s required each beverage standards, all female beverage servers (in- service employee to attend ‘‘Personal Best cluding beverage bartenders) were re- 2 Image Training’’ prior to his or her final quired to wear makeup. As before, male uniform fitting. At the training, ‘‘Personal beverage servers were prohibited from wearing makeup. Because of her objec- Best Image Facilitators’’ instructed Har- tion to wearing makeup, Jespersen refused rah’s employees on how to adhere to the to comply with the new policy. In July standards of the program and tested their 2000, Harrah’s told Jespersen that the proficiency. At the conclusion of the train- makeup requirement was mandatory for ing, two photographs (one portrait and one female beverage service employees and full body) were taken of the employee gave her 30 days to apply for a position looking his or her ‘‘Personal Best.’’ Each that did not require makeup to be worn. employee’s ‘‘Personal Best’’ photographs At the expiration of the 30–day period, were placed in his or her file and distribut- Jespersen had not applied for another job, ed to his or her supervisor. The supervi- and she was terminated. sors used the ‘‘Personal Best’’ photographs After exhausting her administrative as an ‘‘appearance measurement’’ tool, remedies with the Equal Employment Op- holding each employee accountable to look portunity Commission, Jespersen brought his or her ‘‘Personal Best’’ on a daily basis. this action alleging that Harrah’s makeup Jespersen acknowledged receipt of the pol- requirement for female beverage servers icy and committed to adhere to the appear- constituted disparate treatment sex dis- ance standards for her position as a bever- crimination in violation of 42 U.S.C. age bartender in March 2000. § 2000e–2(a) (‘‘Title VII’’). The district maintaining this look while wearing the 1 Eye and facial makeup is not permitted. specified uniform. Additional factors to be 1 Shoes will be solid black leather or considered include, but are not limited to, leather type with rubber (non skid) hair styles, overall body contour, and de- soles. gree of comfort the employee projects while Females: wearing the uniform. 1 Hair must be teased, curled, or styled * * * every day you work. Hair must be worn Beverage Bartenders and Barbacks will ad- down at all times, no exceptions. here to these additional guidelines: 1 Stockings are to be of nude or natural Overall Guidelines (applied equally to color consistent with employee’s skin male/female): tone. No runs. 1 Appearance: Must maintain Personal Best Image portrayed at time 1 Nail polish can be clear, white, pink or 1 Jewelry, if issued, must be worn. Other- red color only. No exotic nail art or wise, tasteful and simple jewelry is per- length. mitted; no large chokers, chains or 1 Shoes will be solid black leather or bracelets. leather type with rubber (non skid) 1 No faddish hairstyles or unnatural col- soles. ors are permitted. Males: 2. The amended policy required that ‘‘[m]ake 1 Hair must not extend below top of shirt up (foundation/concealer and/or face powder, collar.