Covering_ The Hidden Assault on American Civil Rights - Kenji Yoshino [69]
As the dissenting judge in the appellate decision observes, Jespersen’s case presents a “classic case of Price Waterhouse discrimination,” given that she was fired for “failure to conform to sex stereotypes.” (Male beverage servers were, of course, prohibited from wearing makeup.) The majority disagrees, asserting that Price Waterhouse did not reach grooming or appearance discrimination. This is false. The Price Waterhouse decision addressed demands made by partners that Hopkins “dress more femininely” and “wear make-up and jewelry.” But it is easy to see the Jespersen court’s intuition. Like the Rogers court, the Jespersen court seeks to exempt “trivial” behaviors such as grooming or appearance from the ambit of civil rights law. For Jespersen and Harrah’s, however, grooming was obviously not trivial—Jespersen felt demeaned by the makeup and Harrah’s made it a condition of her employment.
Although its protections are imperfectly applied, the sex-stereotyping theory shields women from at least some reverse-covering demands. In contrast, it does not protect women against any covering demands. A familiar picture favoring assimilation emerges. After Hopkins, women will be protected if they are asked both to cover and to reverse cover (if courts adopt the Catch-22 theory), and they will be protected if they are asked to reverse cover (if courts adopt the sex-stereotyping theory). Women who are asked only to cover will remain vulnerable. As law professor Catharine MacKinnon observes: “Ann Hopkins was made partner … for meeting the male standard, a victory against holding her to a ‘femininity’ standard. The victory lies in the recognition of women’s merits when they meet the male standard. The limits lie in the failure to recognize that the standard is the male one.”
Law professor Mary Anne Case supports MacKinnon’s claim with cases, noting that “feminine” women have often been left unprotected by Title VII. In 1987, the Seventh Circuit upheld the dismissal of Marsha Wislocki-Goin, a teacher at a juvenile detention center, for her overly “feminine” appearance and affect. It was uncontested that Wislocki-Goin “performed her teaching duties in a thoughtful, capable, and professional manner.” Yet in 1983, Wislocki-Goin was terminated for “wearing her hair down and wearing excessive makeup,” as well as for engaging in other stereotypically feminine behavior. She brought a Title VII claim alleging discrimination on the basis of sex. The court, however, held for the employer.
Although the Wislocki-Goin case predates Hopkins, the Hopkins plurality does not require a different outcome. Cases subsequent to Hopkins bear this out: I could find no federal Title VII case after Hopkins in which a “feminine” woman prevailed against an affect-based covering demand on sex-stereotyping grounds. This finding suggests what women have in common with gays and racial minorities: a profound legal vulnerability to the demand that they cover the behaviors stereotypically associated with their groups.
One covering demand overwhelms the others. Thinking back to the Yale Law School town hall meeting, I do not believe women will “naturally” rise into the portraits on the walls a generation from now. I do not think my female students will be stymied by the covering demand that they be more “masculine” in their appearance or affect. Nor do I think they will be hobbled by pressure to downplay their activism or their association with other women. Rather, my pessimism arises from the assumption that these women are disproportionately likely to be the primary caretakers of their children.
As Joan Williams and union adviser Nancy Segal note, “over eighty percent of women become mothers,” and “ninety-five percent of mothers aged twenty-five to forty-four work fewer than fifty hours a week year-round.” This suggests most of