News
Sexing up women employees – fair or foul
First published in The Independent, 16 April 2008.
If you want to see a really good example of sexual stereotyping, have a look at the movie Miss Congeniality.
It is, in essence, a story about a competent and successful career policewoman who is required to go undercover as a participant in a beauty pageant. The results are predictably hilarious: worlds collide as the otherwise competent professional is required to take on the airs and graces of the hapless beauty queen.
The story is, of course, a play on the stereotypes that we apportion to each of these two different female roles: we would not, of course, expect a policewoman to be delicate and feminine – nor would we expect a beauty contestant to have the guile and skill required to be a policewoman.
But is this just comedy – or is it a more subtle statement about our inherent, and unfair, bias?
This issue has recently been revisited by an American academic considering the decision in the case Jespersen v Harrah's Operating Company, Inc. (a 2006 decision of the US Court of Appeals).
Harrah's operates a chain of casinos in the United States. In 2000, following the recommendations of an image consultant, it adopted new appearance and grooming standards for beverage service employees. The new standards – called the personal best programme – required both men and women to wear a standard uniform (of dress pants, a vest and a bow-tie), and included several gender-specific requirements for hairstyling, makeup use and nail grooming.
Within a few months, the requirements were altered to mandate that all female employees wear face powder, blush, mascara and lipstick. To boot, the professional image consultant was to design the makeup "template" for each female bartender, dictating where and how makeup had to be applied. Female bartenders were also told that they had to wear their hair "down at all times", and that it must be "teased, curled or styled".
Darlene Jespersen had worked successfully as a bartender in Harrah's casino for 20 years. She was effectively dismissed because she refused to wear the prescribed makeup.
There was no question that Jespersen was an outstanding bartender – she was liked equally by her customers and supervisors. But she did not like wearing makeup, because it made her feel "dolled up like a sexual object".
In 2001, Jespersen brought a case against Harrah's arguing that the casino had discriminated against her on the basis of her gender. The case ultimately proceeded to the Court of Appeals – where Jespersen lost.
The court reaffirmed a previous rationale that a grooming policy which imposed different, but essentially equal, burdens on men and women could not be regarded as different treatment on the basis of gender. The majority of judges that heard Jespersen's case thought that because the personal best programme placed burdens upon each of the men and women employees, it was not inherently discriminatory. A minority disagreed – taking the view that it placed an unequal burden upon women.
The court did, however, accept that an employer may fall foul of the law if it could be shown that a grooming policy was part of intentional sex stereotyping. One imagines that what was envisaged was the type of situation in which women in particular roles are exploited for their sex appeal, rather than being legitimately required to dress or appear in a certain way as part of their job.
But, as critics have been swift to point out, isn't that exactly what happens in any number of workplaces including here in New Zealand?
Speaking in the University of San Francisco Law Review, Dianne Avery has described the phenomenon as the "sexing up and dumbing down of women's work".
Avery suggests that any dress code which mandates that female employees wear sexy revealing tops, short skirts and/or high heels could make for an "easy" case of discrimination under this rationale. She cites as an example a policy which would require baristas to wear sexy negligees as part of the job of selling coffee at a roadside stand.
But Avery suggests that this type of "sexualisation" of women's work is readily apparent throughout the service economy in retail work, clerical work and in food and beverage industries. For example, the Hooters chain of restaurants deliberately hires waitresses on the basis of "age, stature and weight", requiring female employees to wear skimpy uniforms consisting of white tank tops and small orange shorts.
This type of "sexualisation" is not, of course, unknown in New Zealand and possibly the same answer would be generated here in a similar fact situation. While potentially difficult to establish, a workplace policy which deliberately required female employees to exploit their sexuality could be held to be in breach of the human rights legislation.
But, as the Jespersen case illustrates, the area is not easy and difficult questions may arise.
It is, however, a particular type of workplace issue about which employers should beware.
