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May 16, 2005
Gender-specific standards go to en banc hearing
The 9th Circuit has ordered [here] an en banc rehearing in Jespersen v. Harrah's Operating Co (9th Cir 12/28/2004), where a 3-judge panel allowed an employer to fire a bartender for non-compliance with gender-specific grooming standards.
Darlene Jespersen sued under Title VII claiming that the employer's policy requiring females to wear makeup was discrimination on the basis of sex. The trial court granted summary judgment for the employer; the 9th Circuit (2-1) affirmed.
Jespersen was a bartender for nearly 20 years and was an outstanding employee. The employer implemented an appearance standard for beverage servers, which included gender-specific standards for male and female beverage servers. Females were required to wear makeup, stockings, and colored nail polish, and to wear their hair teased, curled, or styled. Males were prohibited from wearing makeup or colored nail polish, and were required to maintain short haircuts and neatly trimmed fingernails. Jespersen refused to comply with the requirement to wear makeup, and the employer discharged her for that reason.
(1) The 9th Circuit relied primarily on the "unequal burdens" test announced in Franks v. United Airlines, 216 F3d 845 (9th Cir 2000) (en banc). In the Franks case female flight attendants challenged the employer's weight restrictions because women were held to more strict requirements than men. The court in Franks held that a "sex-differentiated appearance standard that imposes unequal burdens on men and women is disparate treatment that must be justified as a BFOQ."
Applying the unequal burdens test to this case required the court to "weigh the cost and time necessary for employees of each sex to comply" with the employer's policy. (a) First, the court decided that the burdens must be evaluated with reference to all of the requirements of the employer's appearance policy, not merely that portion dealing with wearing makeup. (b) Second, the court considered Jespersen's argument that the makeup rule imposes tangible burdens on women that men do not share because makeup can cost hundreds of dollars a year and requires a significant investment of time. The court noted that Jespersen cited academic literature in support of her cost and time argument, but that she did not submit evidence of the cost and time burdens that apply to female bartenders. (c) Third, even if the court took judicial notice of the academic literature, there was no evidence of the actual burdens that apply to male bartenders, so the court would be unable to weigh the difference.
(2) Jespersen also argued that the employer's policy required employees to conform to sexual stereotypes and that this was made impermissible by Price Waterhouse v. Hopkins, 490 US 228 (1989). The 9th Circuit recognized that Price Waterhouse held that Title VII bans discrimination on the basis of an employee's failure to dress and behave according to the stereotype corresponding to her gender. However, that case did not address sex-differentiated appearance and grooming standards. Also, although the 9th Circuit has "applied the reasoning of Price Waterhouse in sexual harassment cases, we have not done so in the context of appearance and grooming standards cases, and we decline to do so here."
DISSENT: The dissent argued that this was a classic Price Waterhouse case, and that there was no grounding in Title VII for holding that harassing an individual for failure to comply with gender stereotypes is illegitimate while discharging them for the same reason is acceptable. As for the unequal burdens test, the dissent argued that the focus should be on the makeup rule rather than the entire appearance policy, and that the court should weigh more than time and money - the court should also weigh the sex-stereotyping inherent in certain appearance standards.
My view: The 9th Circuit blew it in the original panel decision.
(1) An "equal burden" analysis in a case like this is nonsense. You don't need to even get into the murky realm of Price Waterhouse gender stereotypes. The employer had a double-standard for males and females. Unlawful on its face. If there were some biological basis for the distinction (separate rest rooms, for example), I could be swayed. But not for makeup, hair-teasing, and fingernails.
(2) Worse nonsense is the court's notion that it's legal to fire someone for non-compliance with a gender stereotype, although it's illegal to harass her for the same thing.
Michael Fox first blogged about this case at Jottings By An Employer's Lawyer [here]. His most recent comment is [here].
Posted May 16, 2005 by Ross Runkel, Editor at LawMemo, publisher of Employment Law Memo. Try it.
February 21, 2005
Sexual harassment and the church
It looks like the 9th Circuit is inviting the Supreme Court to review its recent decision on the interplay between Title VII and the 1st amendment religion clauses. An associate pastor sued her church/employer claiming that her supervisor sexually harassed her, and then she suffered retaliation for filing an EEOC charge, and then she got discharged.
The church argued that the 1st amendment protected it against such suits. The 9th Circuit allowed the retaliation and harassment claims to go forward, but ordered dismissal of any claims for discharge. The court denied a rehearing en banc, and ten judges wrote five opinions.
Elvig v. Calvin Presbyterian Church
Original panel decision (9th Cir 07/23/2004) [Full text pdf]
Order denying rehearing (9th Cir 02/11/2005) [Full text pdf]
The heart of the controversy is the court's formula for dealing with church-minister employment sexual harassment. It goes like this:
First, the 1st amendment overrides Title VII when a church engages in sex discrimination when it hires, fires, or assigns duties to its ministers. That's called the ministerial exception.
Second, Title VII controls when a church engages in sexual harassment of, or retaliation against, its ministers. Therefore, if a church harasses and then discharges a minister because she is a woman, the minister can recover damages for the harassment but not for the discharge.
The 9th Circuit's position is troubling.
Here's my view: Although we attach the label "harassment" to certain kinds of discrimination, that label has no legal significance in Title VII analysis or in constitutional analysis. Sexual harassment is no more or less than a subset of on-the-job sexual discrimination. It is sex-differentiated conduct that changes the employee's terms and conditions of employment, and therefore is no different from assignments to different duties or establishing different rates of pay. These are unlawful under Title VII, but churches should be immune from suit when its ministers are plaintiffs.
There is general agreement that the 1st amendment does not allow Title VII to interfere with the church as to its decisions to hire, fire, and assign duties to its ministers. This protects the relationship between the church and its ministers from government regulation. But some 9th Circuit judges say that harassment suits are analogous to suits under state tort law when a parishioner is sexually abused by a minister. What? That's an analogy?
Elvig's case is an especially good one for 1st amendment protection. Elvig's complaint alleged that her supervisor leered at her and made unwelcome remarks. Government regulation of that activity would involve policing the demeanor (leering) of church ministers and the expression of their opinions (unwelcome remarks). As much as I dislike on-the-job sexual harassment, I think the 1st amendment should protect churches from government regulation of the day-to-day demeanor and expression of one minister to another.
Retaliation for filing an EEOC charge (as opposed to retaliation for complaining within the church) could be a different matter. It could be that there is a "compelling governmental interest" in protecting citizens who use the administrative forum (EEOC) established by Congress.
Posted February 21, 2005 by Ross Runkel, Editor at LawMemo, publisher of Employment Law Memo. Try it.
February 10, 2005
Romantically motivated favoritism is not sex discrimination
Yesterday's decision in Preston v. Wisconsin Health Fund [Full text pdf] (7th Cir 02/09/2005) demonstrates that Title VII wasn't designed to keep supervisors from playing job favoritism with the objects of their romantic interest. It also demonstrates that Judge Posner's decisions continue to be interesting reading.
Jay Preston, a male, claimed he lost his job to a woman who was romantically involved with his supervisor. He claimed that the loss of his job was the result of his supervisor's favoritism toward the replacement, which resulted from the romantic relationship, and that this constituted gender discrimination in violation of Title VII. He also claimed that the two conspired to tortiously interfere with his contractual relationship with his employer. The 7th Circuit affirmed summary judgment for the employer.
1) With respect to the Title VII claim, the court concluded that "[a] male executive's romantically motivated favoritism toward a female subordinate is not sex discrimination even when it disadvantages a male competitor of the woman." The court observed that "[t]he effect on the composition of the workplace is likely to be nil, especially since the disadvantaged competitor is as likely to be another woman as a man .... Neither in purpose nor in consequence can favoritism resulting from a personal relationship be equated to sex discrimination."
2) With respect to the tortious interference claim, the court observed, "to avoid converting employment at will into employment terminable only for cause, the cases require the plaintiff to prove that the defendant had an improper motive." The court continued, "unless courts are to be overwhelmed by suits by disgruntled former employees against corporate officers, more is required than that a discharge be tainted by some private motive, such as greed, personal dislike, or, in this case perhaps, a personal attachment to a competing employee .... The plaintiff must prove both that the employer did not benefit from the defendant's act and that the act was independently tortious, for example as fraud or defamation." The court concluded that Preston failed to satisfy this standard.
Posted February 10, 2005 by Ross Runkel, Editor at LawMemo, publisher of Employment Law Memo. Try it.
