Sunday, January 21, 2007
Here's the abstract:
This essay was written for a symposium on the case Jespersen v. Harrah's Operating Co., in which Darlene Jespersen challenged Harrah's policy that required its female employees to wear makeup. In this essay, I explore the applicable case law, focusing specifically on the emerging law of sexual stereotyping to explain why the law was unwilling to recognize Jespersen's claim. In addition, I suggest that Jespersen's case is symptomatic of the way in which we have come to expect too much both from work and from courts. The workplace is typically not a place to express our identities and the fact that we often look to work as a place for authenticity, speech, democracy, or sex, simply confirms that we place too much importance on the workplace for our lives. Relatedly, it seems unrealistic to expect that courts would find a policy requiring makeup to be demeaning to women, or stereotypical in some way, as Jespersen argued, given that our existing social norms embrace makeup rather than condemn it. Finally, I conclude that this case is really more about power and status - the limited power and status of someone like Darlene Jespersen who worked as a bartender - rather than about the failings of antidiscrimination law.
This Sphinx-like titled article is an important new contribution to sexual stereotype discrimination law and the role courts should play in these cases.