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Wednesday, December 29, 2004

Good Decision

Here is a rare common-sense decision of the sort we don't often see out of the 9th Circuit Court of Appeals.

L.A. Times - Harrah's casino in Reno had the right to fire a female bartender because she refused to wear makeup despite the fact that she had consistently high employment evaluations, a sharply divided panel of the U.S. 9th Circuit Court of Appeals ruled Tuesday.

Harrah's grooming policy that requires women to wear makeup requires men to have neatly trimmed hair that does not extend below the shirt collar and prohibits men from wearing makeup or having long fingernails.

The court ruled that the policy did not place a greater burden on women than on men and, therefore, was not a form of discrimination by sex.


Here are the woman's reasons for not wanting to wear makeup.

According to the court decision, Jespersen tried wearing makeup for a short period of time during the 1980s when doing so was voluntary at Harrah's. But she testified that doing so "made her feel sick, degraded, exposed and violated."

Additionally, the ruling noted, "Jespersen felt that wearing makeup actually interfered with her ability to be an effective bartender (which sometimes required her to deal with unruly, intoxicated guests) because it took away [her] credibility as an individual and as a person."


Businesses have a right to put forth the public image of their choosing. Since employees often represent a major part of that image businesses have every right to dictate how employees should dress and groom themselves while on the job. There are limits, of course, but I don't think that requiring makeup crosses any of those limits.

This woman's case was utter nonsense.

Comments

Avatar for Steve

I think the makeup requirement is a bit silly, but I don’t think it’s out of line.

There are too many cases of workers trying to dictate how the business owners conduct their business. People seem to forget that they are free to move to another job if they don’t like their current one. If Jespersen is an experienced bartender, I’m sure she wouldn’t have any trouble finding a new job.

Jespersen’s reasons for not wanting to wear makeup are a joke. However, if she was allergic or had a medical condition that prevented her from wearing makeup, or if her religion prohibited it, then she would have a valid case. Of course, I doubt that a religion that prohibited makeup would look to kindly on tending bar as a career.

Steve on December 29, 2004 at 10:13 am
Avatar for likwidshoe

Steve says, “However, if she was allergic or had a medical condition that prevented her from wearing makeup, or if her religion prohibited it, then she would have a valid case.”

No.  Then she can go and get another job.  Rob is absolutely right here.  The company has the right to present any image they want.  Period.  The employer is the one who pays money out for a specific job with certain requirements.  An employer and an employee can negotiate, but if the two parties don’t agree to a compromise, then it’s end of story. The employer has the upper hand here unless the employee has some incredible and hard to find skills (i.e.: very marketable).  And let’s face it, this lady’s job comes at a dime a dozen.  She’s easily replaceable.  This lady was acting like this job is her right.  Newsflash for her: it isn’t!

Additionally; you had mentioned, “if her religion prohibited it, then she would have a valid case”.  I have to say to that: really?  What if she was a Muslim practitioner with a full burka?  Would that be a “valid case”?

This case is sort of like the old parent adage, “my house, my rules”.

likwidshoe on December 29, 2004 at 04:12 pm
Avatar for Seth Yantiss

Well said, though maybe a bit harsh. wink

Correct though.  The employment of an individual is a contract between an employee and their employer.  The constitution says that the state will not infringe upon the contract between two people.  Save human rights violations, there should be no governmental interference in the hiring process.  Minimum wage laws should be considered unconstitutional.

Seth Yantiss on December 29, 2004 at 05:12 pm
Avatar for Andrew

Minimum wage laws should be considered unconstitutional.

From a suburban perspective I’d agree completely due to the fact that low paying jobs are in abundance, meaning businesses have to pay a decent rate just to stay competitive.  But from an urban perspective I couldn’t disagree more.  Cities are crammed full of people, but it’s hard to find low paying jobs.  People will take almost any job they can get. If you take away minimum wage, bussinesses will pay their employees less.  With no competition to find workers, what would stop them from only paying $4 an hour or less?  That’s not enough to live on.

As for the whole make-up thing, I think its stupid that make-up is a requirement.  However, I’d say that it is perfectly fine as long as Harrah’s would be willing to pay for the make-up as part of work expenses.

Andrew on December 30, 2004 at 12:13 am
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Cities are crammed full of people, but it’s hard to find low paying jobs.

If cities are overpopulated to the point where people are having problems finding low paying jobs might that not be an encouraging factor for them to leave the overcrowded areas and move into more rural settings where jobs are easier to come by?  And isn’t this sort of migration a good thing, especially when encouraged by naturally occurring economic forces?

I think so.

I live in a very rural area but every year it seems like we have more and more people moving in from the larger cities.  Why?  Because our economy is booming.  The cost of living is cheap here and jobs are easy to come by.  Plus, more jobs are on their way as big companies shift some of their operations like factories and call centers into rural places like my hometown.

Believe me, these are all positive things.


The war against illegal plunder has been fought since the beginning of the world. But how is… legal plunder to be identified? Quite simply. See if the law takes from some persons what belongs to them, and gives it to other persons to whom it does not belong. See if the law benefits one citizen at the expense of another by doing what the citizen himself cannot do without committing a crime. Then abolish this law without delay … If such a law is not abolished immediately it will spread, multiply and develop into a system.

Frédéric Bastiat, The Law

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Rob on December 30, 2004 at 04:12 am
Avatar for Seth Yantiss

Andrew, I know that your heart is in the right place and I can comprehend your point, but I don’t believe it to be valid. 

Just like in Rural communities, a business is only as good as it’s employees.  If a business decides to offer an employee $4/hour, who would take the job?  If you do take the job, then you won’t be able to afford a place to live… how long could you keep working for someone paying $4/hour, while homeless?  Would that effect the level of customer service or job performance?  Any business that made that offer would end up with employees worth $4/hour… and have to close shop.

I formerly worked for a pizza parlor franchise.  Little Caesars Pizza! Pizza! (TM) in Tucson, AZ.  I received a big lesson in Economics there.  If found out that the business considers the loss of a single employee at $10,000.  I’m not talking about consideration for tax purposes or anything… When a store manager wants to fire an employee, the business needs to consider the time and pain involved in finding a new employee, training the new hire, and time spent learning the business.  This is expensive.  $10,000 to replace a single minimum wage employee.  It is FAR cheaper to give incentive raises to your existing employees than it is to replace one.  This principle works in urban areas too. 

Imagine that you own a Burger King.  You need to find employees who will server your customers.  What level of quality are you going to expect from your employees?  If you pay your employees $4/hour are you going to be willing to deal with these people when they have a bad day and everyone decides to quit on you at the same time?  How will you run your store?  Would you expect repeat customers?  OR would customers be offended by the smell of your employees who can’t buy soap with what you are paying them, never to return?  Would you raise the wages you are paying to entice more professional help? 

Minimum Wage laws are a crutch for those unwilling, or unable, to consider themselves valuable. 

Some people feel so worthless that they are unable to provide a monetary value to their time.  If you don’t think you are worth full, you will be taken advantage of.  But this is something that we should teach our children rather than make laws about.  With minimum wage laws, we teach our children nothing about self worth. 

Did you ever wonder why more people turn “Conservative” later in life than turn liberal?  They start to understand the value of their time, are unwilling to fall below a standard unless there are no other options, and they see the value in their knowledge. 

When I was a youth… younger man, I didn’t know what I should earn… I didn’t know what my time was worth… I know my parents did not educate me on these topics, something I do not plan to repeat with my kids.  They must have an idea of what they are worth when they go out into the world. 

I’ve started with my 8 year old.  What I do is this:  He asks if he can have some money, or I have a job that I want him to do… I tell him I’ll pay him 50 cents to do something like, wash the car.  At first he would accept… But now, he’s getting the idea that 50 cents is not worth it for him to wash the car.

I plan to follow some of the teachings in the book “Rich Dad, Poor Dad” by Robert Kiyosaki.

Seth Yantiss on December 30, 2004 at 04:13 am
Avatar for Andrew

Rob,
You make some good points.  However, you fail to factor in the fact that leaving the city can be very difficult.  Not everyone can afford to leave.  Many people still live with their parents until a very late age.  They can’t just pack up and start over when they can barely afford to live as it is.  Also, what about the numerous single mothers that depend on their parents or other relatives to watch their children while they work?  These women aren’t going to be able to afford child care in the suburbs.

Andrew on December 30, 2004 at 06:13 pm
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Well, perhaps as the people who can move do the situation will get better for those who stay behind.

But no solution is going to be a perfect fit.  You can pick any plan apart by saying “what if.”


The war against illegal plunder has been fought since the beginning of the world. But how is… legal plunder to be identified? Quite simply. See if the law takes from some persons what belongs to them, and gives it to other persons to whom it does not belong. See if the law benefits one citizen at the expense of another by doing what the citizen himself cannot do without committing a crime. Then abolish this law without delay … If such a law is not abolished immediately it will spread, multiply and develop into a system.

Frédéric Bastiat, The Law

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Rob on December 30, 2004 at 07:13 pm
Avatar for Seth Yantiss

Many people still live with their parents until a very late age.

Do you remeber the Waltons?  Do you recall that the show was about a family living through the Great depression?  There were three generations living in the same house.  100 years ago, this was the NORM.  In 100 years, we have moved to a society that thinks children move out at 18 to start their own lives.  Perhaps this won’t work for everyone.  Perhaps this notion just needs a few generations before it is shown not to work as sucessfully as had been thought.  Perhaps it would be better for kids to stay in the parents home a little longer.  As an Adult, I wish I had learned more about finances before I got out on my own.  My credit would be a lot better today had I learned how to work within a budget before I got my credit cards.

Also, what about the numerous single mothers that depend on their parents or other relatives to watch their children while they work? These women aren’t going to be able to afford child care in the suburbs.

“It could be that the purpose of your life is only to serve as a warning to others.”

Seth Yantiss on December 30, 2004 at 08:12 pm
Avatar for Mark

Likwidshoe -
You say that ‘the company has the right to present any image they want.’

Suppose a company wanted to present an all-white employee image - would ‘my house, my rules’ still apply? Could it legitimately turn away black people?

Mark on December 31, 2004 at 06:12 am
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No, of course not Mark.  And that’s not what Seth and I are talking about.

I think a business should have the right to determine how employees groom themselves and dress, but discrimination based on race is not acceptable.

Seth’s example of a woman wearing a burka is an interesting situation, however.  If one were to not hire her because she wouldn’t take the burka off could one say she was discriminated against based on her culture?

(By the way Mark, what’s your Avatar picture of?)


The war against illegal plunder has been fought since the beginning of the world. But how is… legal plunder to be identified? Quite simply. See if the law takes from some persons what belongs to them, and gives it to other persons to whom it does not belong. See if the law benefits one citizen at the expense of another by doing what the citizen himself cannot do without committing a crime. Then abolish this law without delay … If such a law is not abolished immediately it will spread, multiply and develop into a system.

Frédéric Bastiat, The Law

Rob’s recently listened-to songs:

robport.gif border=0

Rob on December 31, 2004 at 11:12 am
Avatar for likwidshoe

Andrew says, “With no competition to find workers, what would stop them from only paying $4 an hour or less? That’s not enough to live on.”

Why does it have to be enough to live on?  Why did you add that criteria in there?  Not every job is one that pays well enough to completely live on.

Mark asks, “Suppose a company wanted to present an all-white employee image - would ‘my house, my rules’ still apply? Could it legitimately turn away black people?”

Legally it can’t.  But it should be able to.  The company should be able to hire or not hire whoever they want based on any criteria they want.  Whether or not you agree with the reason, it’s their dollar and they should be able to spend it however they want.  It’s as simple as that.

Rob says, “Seth’s example of a woman wearing a burka is an interesting situation...”

Hey!  That was my example!

likwidshoe on January 1, 2005 at 12:01 am
Avatar for Seth Yantiss

Yeah, Sorry Rob, but that one was Likwidshoe’s wink As much as I would have liked to have taken credit for it. 

As for the rest:

Mac Donald’s pays more than minimum wage.  Why?  because they have to in order to get decent employees.  Most people at the bottom rung of employment earnings are Teens just starting off their career.

My wife’s Grandmother (96), not the one with Alzheimer’s, lives simply.  She doesn’t want the Big Screen TV’s, never did.  She doesn’t need a large SUV, never did.  She lives simply and she lives happily, always has.  If people could get over their class envy, and live a simple life without WANT.  They wouldn’t need much more than a minimum wage job, maybe two.  But so many of us, me included, see the cool things in the Sky Mall catalog and HAVE TO HAVE IT.

It’s “envy” and “Greed” that cause us the problems in the world… Both of these are preached against by most major religions.

Seth Yantiss on January 1, 2005 at 07:01 am
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Whoops, sorry likwid.


The war against illegal plunder has been fought since the beginning of the world. But how is… legal plunder to be identified? Quite simply. See if the law takes from some persons what belongs to them, and gives it to other persons to whom it does not belong. See if the law benefits one citizen at the expense of another by doing what the citizen himself cannot do without committing a crime. Then abolish this law without delay … If such a law is not abolished immediately it will spread, multiply and develop into a system.

Frédéric Bastiat, The Law

Rob’s recently listened-to songs:

robport.gif border=0

Rob on January 1, 2005 at 12:02 pm
Avatar for Mark

Rob -
It’s a valley in the Lake District - one of my favourite places to go hiking.

My point about a company seemingly being able to discriminate based on race was directed at likwidshoe - he has subsequently confirmed that he thinks a company should have the right to turn away someone on the basis of their skin colour.

I think likwidshoe is wrong, because a person cannot change the colour of their skin (a similar case might be made for gender/sexuality). That means that people are not being treated equally.

Conversely, a person can make changes to their appearance, and if they choose not to make those changes, then tough, they shouldn’t get the job. I think, like you, justice was done in this particular case.

However, the burka example is interesting. I remember a case from this country many years ago, in which Sikhs were asking for an exemption from compulsory helmet-wearing when using motorcycles - because it would mean that turbans would have to be removed.

The exemption was not allowed - the judge felt that temporarily having to wear helmets instead of turbans would not damage Sikh culture or religious practice. I think a similar logic applies in this case - perhaps removing the burka while at work, and at work only, would not seriously impinge on Islamic culture. Of course, one might argue that the woman strongly felt that the burqa was important to her - but a) how ‘strongly’ does one have to feel, and b) would this apply to any religion (even one I decide invent now?)

Mark on January 3, 2005 at 01:01 pm
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