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__HARV. CIV. RTS. CIV. LIB. L. REV. __ ( 2006)

    MAKEUP AND WOMEN AT WORK

    Devon Carbado

    Mitu Gulati *Gowri Ramachandran

    I. INTRODUCTION ........................................................................................ 12 II. HOW ONE WOMAN'S REFUSAL TO WEAR MAKEUP GOT TO

    THE NINTH CIRCUIT ................................................................................. 18

    A. The Facts ......................................................................................... 18

    B. The Litigation Path and the District Court

    Proceedings ..................................................................................... 19

    C. The Circuit Court Proceedings ........................................................ 24

    1. The Lawyers ................................................................................ 24

    2. The Judges .................................................................................. 26

    3. The Majority Opinion .................................................................. 28

    4. The dissent .................................................................................. 30 III. GENDER EXCEPTIONALISM, GENDER NON-CONFORMITY

    AND GENDER STEREOTYPING ................................................................... 32

    A. Defining Gender Exceptionalism ...................................................... 34

* Faculty members at UCLA, Georgetown, and Florida State University, respectively. The authors are grateful to Suzette Baker, Stephen Choi, Michael Collins, Anne Coughlin, Kimberle Crenshaw, Adrienne Davis, Chai Feldblum, Cheryl Harris, Kevin Haynes, Craig Hoffman, Mara Keisling, Kim Krawiec, JoAnn McCluskey, Jenny Pizer, George Rutherglen, Richard Schragger, Dan Ortiz, and Ann Woolhandler for conversations about the Jespersen case and the issues it raises. For comments on the draft, thanks go to Gabrielle Brussel, Prea Gulati, Catherine Fisk, Kim Forde-Mazrui, Tristin Green, Rafael Gely, Richard Posner, and Kimberly Yuracko. We owe a debt to Joel Friedman for encouraging us to work on this piece and to Taimie Bryant for suggesting that Jespersen is precisely the kind of case around which we should structure our work. The Ninth Circuit granted rehearing en

    banc of this case, see Order, 409 F.3d 1061 (9th Cir. 2005), but as of this writing, a decision has not yet been rendered

    1

2 MAKEUP AND WOMEN AT WORK

    B. Gender Exceptionalism and Price Waterhouse ................................. 35

    C. Normative and Descriptive Stereotyping .......................................... 40

    1. Normative Stereotyping ............................................................... 40

    2. Descriptive Stereotyping .............................................................. 42

    D. The Double Bind .............................................................................. 44 CONCLUSION ................................................................................................... 49

Devon Carbado Mitu Gulati Gowri Ramachandran 3

    ABSTRACT

     This is a story about gender, makeup and the law. Darlene Jespersen, a

    bartender, was fired from her job of fifteen years at Harrah's Casino because

    she refused to wear makeup. Jespersen responded with a lawsuit that traveled to

    the Ninth Circuit, where she was represented by LAMBDA Legal, the preeminent

    gay rights litigation organization. Makeup, some will argue, is a trivial thing.

    Why would Darlene Jespersen (choose to) lose her job over makeup? More

    generally, how did favoring (as opposed to prohibiting) a practice that so many

    women (but not men) engage in become the basis for a sex discrimination suit?

    Why was LAMBDA involved? What is at stake? Isn't makeup a vehicle for

    women to express their autonomy and individuality? Finally, do we really want

    the federal government involved in policing employers’ makeup policies?

     Because anti-discrimination law has been wedded to a biological concep-

    tion of sex, it has not grappled well with sex discrimination cases that implicate

    makeup and grooming. This is particularly problematic in today's labor market

    because few contemporary employers are likely to exclude all women from their

    workplace; they are far more likely to engage in intra-gender screening based on

    whether a woman's self presentation is in accord with social scripts about

    gender normative behavior. Using Jespersen as a point of departure, we reveal

    how makeup is implicated in this screening process and explain why its

    regulation ought to be conceptualized as a form of discrimination on the basis of

    sex.

4 MAKEUP AND WOMEN AT WORK

    1"A woman without paint is like food without salt.

    PROLOGUE: MAKING WOMEN TASTEFUL

     This is a story about gender, makeup and the law. The setting is a casino in

    Reno, Nevada. The protagonist is Darlene Jespersen, a successful and well-liked

    bartender whose employer, Harrah's Casino, terminated her employment because

    she refused to wear makeup. Jespersen responded with a lawsuit that traveled all

    the way to the Ninth Circuit. A three-judge panel heard the case, two of whom

    produced a majority ruling in Harrah's favor--namely, that neither Harrah's

    decision to fire Jespersen nor the casino's elaborate makeup and grooming

    requirements runs afoul of Title VII's prohibition against discrimination on the

    basis of sex.

     These foregoing facts raise a number of important normative and doctrinal

    questions. Why wasn't this case thrown out of court? What precisely is the legal

    controversy? Makeup, one might argue, is such a simple little thing--normal,

    natural and ubiquitous. Why would Darlene Jespersen (choose to) lose her job

    over makeup? More generally, how did favoring (as opposed to prohibiting) a

    practice that so many women (but not men) engage in become the basis for a sex

    discrimination suit? What is at stake? Isn't makeup a vehicle for women to express

    their autonomy and individuality? What, then, does makeup have to do with sex

    discrimination?

     These questions drive the employment discrimination law story we tell. But

    for the story to have traction, we need a background narrative, a prologue, about

    the constitutive role of cosmetics in women's lives; about the ways in which

    makeup has colored women, covered women, marked and inscribed women--quite

    literally made women up. More than layering women's faces, makeup has layered

    the social meaning of women's identity. In other words, makeup is part of what has

    made women women. The background narrative we articulate reveals how. The

    narrative illustrates how employers have used makeup as a technology to screen

    women into and out of the workplace. The historical role of makeup in women's

    public (workplace) and private (family) lives, and the continuities makeup

    facilitates between these two not-so separate spheres, is absent from the jurispru-

    dence on makeup and grooming. Our prologue fills this gap and in so doing

1 Christy Tillery French, The History of Makeup, at http://www.authorsden.com/visit

    /viewarticle.asp?AuthorID=4307&id=15438 (2004).

Devon Carbado Mitu Gulati Gowri Ramachandran 5

    illuminates why Darlene Jespersen might respond to her employer's request that

    she wear makeup with a lawsuit.

    * * *

     Makeup has a long, complicated, and gendered history. In the 1600s, both

    European men and women used cosmetics to alter and modify their appearance

    and to display class status and wealth. Wealthy American male and female 2colonists did they same; they wore ―rouge, powder, and even beauty patches.‖

    However, around the time of the American Revolution, a middle class and anti-

    aristocratic morality in America successfully promoted the notion that use of 3makeup was depraved, unclean, and dishonest. Luxury and adornment in general signified ―patrician‖ styles that were at odds with a ―republican society of manly 4citizens and virtuous domestic women.‖ In particular, older signifiers of class and power were ―newly defined as effeminate,‖ linking rational citizenship to a kind of

    rugged masculinity. The effeminization of makeup did not mean that it was

    deemed appropriate for women. In fact, even women were ―instructed to shun

    paints and artifice.‖ Makeup was perceived to be at odds with newly emerging 5feminine ideals of domesticity and purity.

     While this newly dominant middle class cultural identity ―was structured, in 6large part, around essential gender/sexual difference,‖ makeup was not perceived to be a legitimate means to maintain gender divisions. This is because the wearing

    of makeup enabled women to perform an identity that was different from their

    ―natural‖ self. The potential makeup afforded women to transform themselves was

2 See, e.g., Kathy Peiss, Making Up, Making Over: Cosmetics, Consumer Culture, and Women’s Identity, in THE SEX OF THINGS, 311, at 315 (Victoria de Grazia ed., 1996). Although we focus attention on the anglo american context, makeup has played a similary complex gender role in other contexts as well. See, e.g., Mikiko Ashikari, Urban Middle-Class Japanese Women and Their White Faces: Gender, Ideology, and Representation, 31 Ethos 3 (2003) (illustrating how women wearing white faces both symbolizes and serves to communicate a gender hierarchy with men working outside the home and women working inside it).

    3 See Peiss, supra note 2. The move to condemn makeup though was not a purely American thphenomenon. In the 17 century, Thomas Hall, an English pastor, led a movement condemning “face painting” as the “devils work” and in 1770, the British Parliament even passed a law condemning lipstick and announcing that women found to be attempting to ensnare men through the use of cosmetics could be tried for witchcraft. See Meg Cohen Ragas & Karen Kozlowski, READ MY LIPS: A CULTURAL HISTORY OF LIPSTICK (1998). And in the 1800s, Quecn Victoria publicly declared that the wearing of lipstick was impolite. Jessica Pallingston, Lipstick (2000).

    4 See Peiss, supra note 2.

    5 Id.

    6 Id.

    6 MAKEUP AND WOMEN AT WORK

    7―fundamentally at odds with notions of fixed personal and social identity.‖ By the

    early 1900s, makeup was actually employed to solidify class and racial distinc-

    tions. The cosmetics industry created separate markets for high class makeup, 8lower class makeup, and African American makeup. Makeup played a role in keeping women in their place not only with respect to gender, but with respect to

    class and race as well. But that social function of makeup occurred much later. In

    the 1800s, makeup was thought to disrupt, not maintain, social hierarchies.

     To create disincentives for women to wear makeup, the social meaning of

    makeup had to be negative. Thus, makeup came to carry a disreputable meaning 9for most women, associated with prostitutes. The phrase ―painted woman‖ was a 10euphemism for a prostitute. Cosmetics became associated with traditional

    stereotypes about a female tendency to vicestereotypes of women as corruptible and uncontrollable sexually, with reference made to Jezebel as a symbol of 11feminine danger and sexuality.

     By the time of the Civil War, paranoia concerning the use of makeup by

    women as a kind of ―false advertising‖ on the marriage market was rampant.

    Although beauty was considered a quality in women, it was believed to come

    about as the result of good moral virtue and habits. Thus, women were encouraged

    to achieve a beautiful appearance by living a clean life, not by the ―artifice‖ of 12paint-like cosmetics. These admonitions to women and paranoia concerning use

    of cosmetics incorporated racial anxieties about a widespread practice of skin

    whitening and about light-skinned African American persons passing into white

    society. Warning tales were consistently told of women who used cosmetics

    containing lead or bismuth to alter their complexion and were subsequently

    ―humiliated because [their] ‗lily white‘ complexion[s] had been muddied and

7 Id. at 320.

    8 See Kathy Peiss, HOPE IN A JAR, 203-37 (1998).

    9 Peiss, Making Up, Making Over, supra note 2, at 315.

    10 Peiss, HOPE IN A JAR, supra note 8, at 26-27.

    11 See Efrat Tseëlon, THE MASQUE OF FEMININITY: THE PRESENTATION OF WOMAN IN EVERYDAY LIFE 8-18 (describing Greek mythological and Biblical conceptions of the feminine as evil and untrustworthy, with the resulting impulse to control female sexuality through “a discourse of modesty and chastity in dress”) (1995).

    12 Peiss, HOPE IN A JAR, supra note 9, at 24-25.

Devon Carbado Mitu Gulati Gowri Ramachandran 7

    13darkened.‖ Similarly, advice to men seeking marriage appeared about how to 14distinguish authentic and fake beauty.

     In the late nineteenth century, the notion of women legitimately using makeup

    to perform various roles began to take hold. Actresses and other female performers,

    whose use of makeup had previously been part and parcel of their questionable

    morality, began rising to celebrity status. Photography studios became places in

    which those sitting for a portrait dressed their best and demanded retouching when

    faced with the photographs which ―measured the distance between ideal beauty 15and reality.‖ However, paranoia about use of makeup to deceive or mask one‘s

    true inner identity remained. One advice book distinguished between an old woman

    using rouge to deceive a man into marriage and a young woman using rouge as a 16fair ―stratagem‖ originating out of her ―innocent desire to please.‖

     In the early twentieth century, the role of women in American society

    underwent rapid change. Where women had previously been relegated to the

    domestic sphere, it was now becoming acceptable for them to take on more public

    roles, especially as consumers. Thus, the essentialized statuses of men and women

    were in flux. The cosmetics industry seized on these changing notions of female

    identity to reconstruct the concept of the feminine gender and the role of cosmetics 17for women. First, ―beauty culture‖ entrepreneurs, many of whom were women,

    argued that the employment of cosmetics, including colored cosmetics and

    powders or bleaches that covered or lightened the skin‘s natural tone, would

    ―enhance‖ natural beauty, allowing women to choose a ―type‖ or ―look‖ for

    themselves as they participated in the public sphere. This was a type of agency

    enhancement argument; the notion being that makeup enabled women to broaden

    the range of identities that could be performed. Simultaneously, the notion that

    beauty represented internal virtue and worth was cleverly turned on its head with

    an argument that using makeup would actually reveal the good and beautiful 18woman inside. Both of the above arguments, contradictory though they may

    seem, have endured: The notions that makeup enhances or reveals one‘s natural or

    inner beauty (that is, authenticity) while also allowing women to perform a wider

    13 Peiss, Making Up, Making Over, supra note 2, at 316. 14 Id. at 320.

    15 Id. at 321.

    16 Id. at 322.

    17 Peiss, HOPE IN A JAR, supra note 8, at 61-96.

    18 Id.

    8 MAKEUP AND WOMEN AT WORK range of identities that might otherwise be possible (that is, inauthenticity) 19continue to have currency today.

     By the mid twentieth century, larger industrial companies, usually headed by

    men (although often with a woman figurehead for credibility), had entered the 20beauty industry. These larger companies engaged in massive amounts of national

    scale advertising: At one point, the same amount of money was spent on advertis-

    ing for cosmetics in America as for food, even though food was an industry 17 21times larger. With the corporatization of the cosmetics industry came a more

    solidified and naturalized conception of the proper use of makeup. The use of

    makeup became standardized. No longer was makeup viewed as a social practice

    through which a woman could express her particular sense of self in the public. 22Nor was makeup considered a sinful or dangerous act of artifice. Makeup

    became and natural and necessary part of being a woman, a social technology for

    gender conformity.

     Paradoxically, makeup‘s feminized standardization of women helped to

    legitimize their entrance in the workplace during World War II. As women

    increasingly participated in formerly male spherespolitics, economic activities, and the labor marketmakeup served to appease an anxiety concerning this

    intrusion and integration. While some employers were troubled by the use of 23makeup on the job (for both safety and cultural reasons), many others welcomed it. Makeup functioned as a means of maintaining separate spheres and roles for

    men and women--separate masculine and female identities--in the face of gender

    integration. Advertisers, employers, and the women laborers themselves used

    ―appeals to femininity‖ to ―diffuse some of this unease around the role of 24women.‖ By using makeup at work, the consciousness of women as women was

19 See Tina Gaudoin, Makeup, Harper’s Bazaar (September 1992) at 1; see also Embrace Your Beauty, Shape Magazine (April 2005) at 54. It is interesting to note that an article about cosmetics is titled “Embrace Your Beauty,” rather than “alter your appearance” or “make yourself look beautiful.” Wearing makeup is described as embracing one’s own beauty rather than making oneself appear different in a manner one considers beautiful.

    20 Peiss, HOPE IN A JAR, supra note 8, at xxx.

    21 See UP FROM THE PEDESTAL: SELECTED WRITINGS IN THE HISTORY OF AMERICAN FEMINISM (Aileen S. Kraditor, ed., 1968).

    22 See Peiss, HOPE IN A JAR, supra note 8, at 97-133.

    23 Paula Black, THE BEAUTY INDUSTRY: GENDER, CULTURE, PLEASURE 34 (2004). 24 Id.

Devon Carbado Mitu Gulati Gowri Ramachandran 9

    25reinforced, in contrast to consciousness of women as workers. Tangee cosmetics, for instance, used an advertisement that ―encouraged the use of lipstick, even

    though the world was at war, and congratulated women on ‗keeping your 26femininityeven though you are doing a man‘s work.‘‖ Lockheed and Sperry, Boeing, and the Seattle Navy Yard formally encouraged this gender signaling by

    offering beauty salons, cosmetics stations, charm classes, and beauty advice 27respectively. ―Even the All-American Girls Professional Baseball League,

    organized during the war, ordered women ballplayers to take makeup lessons from 28Helena Rubinstein and to appear ladylike on the field.‖ Although cosmetics were temporarily banned from the market in an attempt to conserve essential materials

    in the United States, the ban only lasted four months, as cosmetics had ―come to

    be seen as essential to the war effort in terms of the role it played in securing 29women‘s commitment.‖ Makeup was even described as essential to women‘s 30mental health during the war.

     In short, makeup and women‘s entrance into the modern workplace have gone

    hand-in-hand. Employers have used makeup to both screen women into the

    workplace and to screen them out. Through makeup, women could signify not only

    femininity but also gender difference. Makeup was a means by which women

    could transform themselves into gender-role types expected in particular jobs, such

    as saleswoman, secretary, or waitress. More generally, the presence of makeup on

    the faces of women inscribed their bodies to convey something like the following

    assurance to employers: ―The fact that we are in the same workplace as men, and

    doing the same work as men, does not mean that we are in fact the same as men.‖

    Through makeup, women could perform gender palatability and gender comfort.

    Makeup signified that gender integration would not mean the disruption of gender

    hierarchy. Indeed, precisely because of the social continuities of makeupnamely,

25 Mary-Alice Waters, Introduction to COSMETICS, FASHIONS, AND THE EXPLOITATION OF WOMEN 3, 15 (Joseph Hansen & Evelyn Reed eds., 1986).

    26 Black, supra note 23, at 34.

    27 Peiss, HOPE IN A JAR, supra note 8, at 241-42.

    28 Id. The fear of the perception that women’s sports are a haven for lesbians or other men haters has, in many contexts, led sports associations to impose grooming and appearance rules on the players as part of the attempt to feminize these players. See, e.g., A. Burroughs et al., Ò"Add sex and stir": Homophobic coverage of women's cricket in Australia, 19 Journal of Sport and Social Issues 266 (1995).

    29 Black, supra note 23, at 34; see also Peiss, HOPE IN A JAR, supra note 8, at 241-42. 30 Transcript of Video Presentation by Sheridan Harvey, Rosie the Riveter: Real Women Workers in World War II, Library of Congress Virtual Programs and Services, available at http://www.loc.gov/rr/program/journey/rosie-transcript.html (last visited April 13, 2005).

    10 MAKEUP AND WOMEN AT WORK that women wore makeup across the public/private distinction--men could be

    assured that, at the end of the day (at home), and during the day (at work), women

    were going to be womenwhich is to say, subordinate to men. Rosie the Riveter 31always wore makeupat home and at work.

     The following three notions have remained constant throughout the shifting

    understandings of the propriety of women wearing makeup: (1) women should

    desire beauty; (2) that desire will render them more successful and more attractive to men; and (3) that makeup is a means by which women can signal their sexuality.32 After World War II, the relationship between makeup and women‘s sexuality

    has intensified. One Max Factor ad campaign for a new color of lipstick proc-

    laimed that it will ―bring the wolves out,‖ picturing a woman dressed as Little Red

    Riding Hood in the forest, pursued by a number of men hiding behind trees, like

    wolves. Further, text in the ad instructs women to wear the lipstick at their ―own

    risk,‖ because it will cause the wearer to be ―followed‖ by men, transforming ―the 33most innocent look into a tantalizing invitation.‖ Currently, mass-market makeup advertising even more openly references the association with sexuality (fortunately

    in a generally less ominous fashion) with products such as Nar‘s ―Orgasm‖ line,

    Ramy‘s ―Casual Sex‖ face gloss, and Dessert, a line of Jessica Simpson sponsored

    makeup that describes itself as ―the cosmetic equivalent of really gorgeous

    lingerie,‖ and numerous cosmetics products promising to provide a ―come hither‖

    look. Then there is Hollywood, where the Ugly Duckling turning into a sexually

    desirable Swan narrative (often via a quick makeover) is one of the most popular

    and enduring of storylines; and this is to say nothing of the plethora of reality

    shows that focus on providing cosmetic surgery to women to transform their 34appearance.

     Women and men have, of course, never been entirely passive in this state of

    affairs. First, many women found in the cosmetics industry an opportunity for 35career advancement that wasn‘t available elsewhere. African American women in

    particular have historically participated in a more politicized, racially conscious,

31 Id.

    32 See, e.g., “Trish McEvoy, Ask the Expert,” Fitness Magazine (April 2005) (answering the question of what shade of blush to wear: “Look for a color that mimics your natural flush.”).

    33 COSMETICS, FASHIONS, AND THE EXPLOITATION OF WOMEN, supra note 25, at 84. 34 The Biography Channel, for example, had a recent show on the Ten Best Ugly Duckling to Swan movies from Hollywood. See http://www.thebiographychannel.co.uk/new_site/biography.php?id=1529&showgroup=1760 (visited last on August 22, 2005)

    35 See Peiss, HOPE IN A JAR, supra note 8, at 61-96.

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