As a waitress, my sister wears a uniform that requires a black button-up, slacks, an apron and a full face of makeup.
Her boss has (luckily) never openly demanded that she wear makeup, but she knows what is expected of her and the other waitresses when they are told to come to work “put together.”
Their faces must be plucked, primed and pasted into place, as if they are puzzles naturally lacking some of the pieces.
Despite having been challenged in multiple federal court cases, it is legal for businesses to unequivocally demand that women wear makeup to work. Recently, however, a powerful nondiscrimination act — known as the Creating a Respectful and Open World for Natural Hair, or CROWN, Act — focused on protecting historically Black hairstyles in the workplace has been enacted by multiple city, and even some state, legislatures. California was, in fact, the first state to pass a Senate bill that confirmed its legal commitment to protecting Black hairstyles from vicious stereotypes. The act erases any trace of ambiguity by outlining the protected hairstyles, daring an employer to try to misinterpret the law. While the act only affects the city or state where it is passed, it’s steadily gaining traction and pushing the nation toward truly protecting individuals from discrimination in the workplace, a struggle that has continuously been thwarted in the federal court system.
In 1964, Title VII passed with a promise to prohibit employment discrimination on many fronts. It was the culmination of the Civil Rights Movement and symbolic of a massive victory for civil rights advocates. However, Title VII did not end legal discrimination. Since the act was passed, the U.S. Supreme Court has ostensibly set a precedent that has been detrimental to prosecuting bias.
In the fateful case of Washington v. Davis, the justices confirmed that the plaintiff in a discrimination case must prove that the defendant intended to discriminate, as opposed to showing disparate impact. The plaintiffs in Washington v. Davis filed the case because they noticed that the police test they took excluded and rejected a disproportionate number of people of color. After hearing the plaintiffs’ case, the justices of the court agreed there was a disparate impact against Black applicants. Still, the justices determined that the test wasn’t designed with the intent to discriminate, as all applicants had to pass the same one, so the test didn’t constitute discrimination. Disparate impact was no longer sufficient to confirm bias.
Finding hard evidence that someone intended to discriminate requires nothing short of the defendant essentially explaining aloud, to multiple witnesses, why they planned to exclude a specific group. Today, even the most biased employers are unlikely to publicly brandish their intentions to mistreat others. The impacts, however, of implicit bias and racism continue to silently run rampant.
Nonetheless, requiring proof of intended discrimination has been repeatedly upheld. In 2001, Jespersen v. Harrah’s Operating Co. was brought to a district court by Darlene Jespersen, a female employee at a casino. Jespersen was fired for not complying with the casino’s “Personal Best” policy, which required women to wear substantial amounts of makeup. Although the district court found no evidence of unequal treatment based on sex, the 9th U.S. Circuit Court of Appeals took note of the disparate impact against Jespersen. Unfortunately, Jespersen still lost. The results of this case suggest that legally, expecting only women to wear obtrusive amounts of makeup in the workplace does not equate to forcing them to conform to a stereotypical image of a woman.
U.S. Circuit Judge Harry Pregerson put it best in the dissent when he said, “The inescapable message is that women’s undoctored faces compare unfavorably to men’s, not because of a physical difference between men’s and women’s faces, but because of a cultural assumption — and gender-based stereotype — that women’s faces are incomplete, unattractive or unprofessional without full makeup.”
Despite the years of court precedent further confirming the inevitability of discrimination, city-based ordinances and state acts offer a second chance. Berkeley has the power of local governance that can and should be used to improve protection against discrimination locally. Furthermore, our City Council is less bogged down by bureaucracy and can therefore act relatively quickly.
Using the CROWN Act’s version of explicit protection as a template, an additional act could be designed to prohibit employers from requiring women to wear makeup. Progressive cities and states, such as Berkeley and California at large, could once again act as the harbingers of the end of legal stereotypes, which enable and perpetuate workplace discrimination.
Just as an ordinance can protect people of color from stereotypes set by the hair of white people, an ordinance could also protect women from the stereotype that they can’t appear professional without makeup. Preventing discrimination won’t destroy the social norms that will still disadvantage non-stereotypically feminine women in the workplace, but it’s a step in the right direction.
Whether someone has an extensive routine to present themselves at work or not should be their choice. All individuals — not just men — should have determination over their appearance.