Sunday, January 16, 2005


On January 4, the Bee contained an editorial on a recent federal appellate court decision from the Ninth Circuit regarding sex discrimination. (Online version) The case was Jespersen v. Harrah's and the Bee's obtuse editorial seemed like such a kneejerk reaction that I thought I would read the decision.

If the Bee read the case then they either outright lied or didn't understand a single word of the decision. If they didn't read the case, then the Bee simply based its editorial on the talking points memo it got from Mother Jones Magazine.

The editorial states that Harrah's instituted a workplace appearance policy that stated women must "wear stockings, lipstick, foundation, blush, mascara and nail polish . . . [and] fix their hair 'teased, curled, or styled,'" while men must "merely have to be clean and neat in appearance." This is a lie. The policy is set forth in the court's decision and it requires men to have their hair, hands, and shoes to appear in a specific manner.

The Bee's editorial states that the "two judges [in the majority opinion] do not think that Harrah's policy imposes any extra cost or time on women beyond 'ordinary good-grooming standards.'" Not only is this a lie, but the two judges the Bee references expressly state that they had to rule against Jespersen on this issue because she presented no evidence that extra cost or time was imposed on women than men by the policy:

Even if we were to take judicial notice of the fact that the application
of makeup requires some expenditure of time and money, Jespersen would still
have the burden of producing some evidence that the burdens associated with the
makeup requirement are greater than the burdens . . . [Harrah's] policy
imposes on male bartenders, and exceed whatever "burden" is associated with
ordinary good-grooming standards. Because there is no evidence in the
record from which we can assess the burdens that . . . [Harrah's] policy imposes
on male bartenders either, Jespersen's claim fails for that reason

There you have it. The court could not rule in favor of Jespersen's claim because she did not bother to present any evidence in support of it. . . more precisely, her lawyers failed to do so.

The Bee tries to bolster its indignation by citing a U.S. Supreme Court case Price Waterhouse v. Hopkins which stated that it is unlawful to discriminate against employees on the basis that the employee's failure to dress and behave according to the stereotype corresponding with her gender. As the two-judge opinion pointed out, the Price Waterhouse case did not address the issue of whether an employer can impose sex-differentiated appearance and grooming standards on its male and female employees. Attention Bee editorial staff: Do you see the distinction? The court specifically said that it was bound by the Ninth Circuit's en banc decision ("en banc" means every appellate judge in the Ninth Circuit weighed in on the written opinion) of Frank v. United Airlines, Inc. which reiterated the legal standard that the Jespersen court used.

The Bee's editorial is so slapdash and an embarrassing misrepresentation of the case.


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