I repost this blogged case brief because I love how the author describes a restaurant’s requirement that female employees wear makeup: “Performing Gender.”
Taken originally from a San Diego paper:
Shenoa Vild hates to wear makeup. Face goop is simply not for her. She happens to think she has a naturally healthy, vibrant complexion. After meeting her, I have to agree.
But Vild, a waitress, says her former boss had an entirely different opinion.
He wanted Vild to wear makeup.
So, she says, she got canned.
Vild had worked at Trophy’s in Mission Valley for five years without wearing makeup. Apparently, for all that time, it didn’t matter.
But the restaurant was sold earlier this year, and she says the new management wanted the women to doll up. Vild says she got the ax in late April when she wouldn’t.
Employers have the right to do this. A few years ago, the 9th U.S. Circuit Court of Appeals ruled that it is not discrimination for employers to make women wear makeup. (Who are these judges? Maybelline stockholders?)
But just because it’s legal doesn’t make it right.
Having worked in bars and restaurants for an uncomfortable number of years I can’t really imagine an enforceable standard in the employee’s favor. Food-serving employees have to be, well, appetizing. This particular plaintiff is attractive, but a business needs to be able to police some baseline of employee behavior — especially in these economic times! Take my “nonfeminist” caveat into account as I dismiss the “performing gender” argument. But when you compare slippery slopes everyone would prefer that courts not prevent businesses — especially small businesses — from enforcing some minimal employee behavior standard.