Makeup, Identity Performance & Discrimination: 

Q&A with Professors Catherine Fisk and Mitu Gulati

Q: What are the key issues you will be raising at this symposium?

Fisk: We will be probing the relevance of appearance, given how appearance relates to race, gender, religion, ethnicity, and, to use Mitu’s and [co-author, UCLA Law Professor] Devon Carbado’s term, an individual’s particular way of “performing” your racial identity or gender identity. What is the relevance of that to an employer’s business model? What is the scope of an employer’s interest in controlling what you look like?

Q: The idea for the symposium arose from a case that upheld an employer’s right to fire a woman because she wouldn’t wear makeup to work. What are the trends in the areas of employment discrimination regarding stereotyping employees and workplace appearance standards? 

Fisk: Earlier this year, in Jespersen v. Harrah’s Casino, a majority of the Ninth Circuit Court of Appeals upheld Harrah’s firing of a long-time, highly regarded bartender because she wouldn’t wear makeup as the company’s policy required her to. In Jespersen, the majority said the requirement that women wear makeup is not based on a stereotype of what is appropriate female behavior.

In Price Waterhouse v. Hopkins [in 1989], the Supreme Court ruled in favor of a woman who was passed over for partnership by Price Waterhouse. With evidence that the firm thought she was too aggressive, too unladylike, and that she needed to talk more femininely, walk more femininely, get her hair styled, and wear makeup, the Supreme Court had no trouble finding that that was evidence of illegal sex discrimination based on a stereotype of how women ought to behave — the firm was promoting men who were aggressive. There was also a whole series of cases, dating from the early 1970s, in which courts had some trouble deciding under what circumstances sex-specific grooming requirements — and some race-specific ones — should be upheld; courts largely upheld standards requiring men to wear their hair short, yet generally struck down rules requiring women to wear skirts, although there was some complexity.

So there were various cases about grooming and clothing requirements, and another line, exemplified by Price Waterhouse, that was thought to be about behavior stereotypes, not about appearance. I think courts always thought those were two specific lines of cases, but whether or not that’s true is a matter for discussion.

Q: How does “identity performance” fit in?

Gulati: At some level, performing your job involves performing an identity; put differently, your identity is largely a function of how you perform. Catherine and I both have the perspective that these questions get fundamentally to the question of what is gender? What is race? You can’t think about race discrimination unless you have a meaningful theory of what race is. It doesn’t make any sense to say race is biological. So what is it? Does it make me more a part of a racial minority if I talk about slavery or Japanese internment a lot? There is a strong argument to say that it does. That’s certainly how we understand it colloquially, when we talk about how a woman is “more feminine,” if she is wearing more makeup, or in other contexts, “more masculine,” or “more black.” But that doesn’t mean the colloquial discussion should dictate the legal discussion.

Fisk: When we regulate in the work relationship, we’re regulating over values that we think are important. We don’t make it illegal to fire people born on Tuesdays, but we do make it illegal to fire people because of their religion. I think when the Ninth Circuit said the requirement that Darlene Jespersen wear makeup wasn’t important, and that it wasn’t discrimination, even though it was different for men and women, they were assuming the perspective of women who really don’t mind makeup, those who think, “Yeah, it takes me time to buy it and put it on, but it’s really no more burdensome than combing my hair or brushing my teeth.” They ignored the minority of women who truly object.

Gulati: In some ways, this represents the third generation of understanding discrimination. When you think of the first generation, it was about minorities and women being excluded from places. The second involved a recognition that it wasn’t just exclusion, but people’s cognitive biases; discrimination was more subtle because people had stereotypes. Now we are talking about subsets of groups. Empirically, it may be true that a majority of women of a certain age will wear some level of makeup. Then it’s hard to say it’s discriminatory to have a requirement if the majority of that group — women — would say it is fine. But that begs the question of whether they would say it was fine if it was a requirement as opposed to if they do it voluntarily.

Q: Is discrimination the only way these issues can be framed?

Fisk: This is an emerging area of law, so we have a moment of choosing what legal framework we want to use to think about why, if at all, it’s objectionable for an employer to require somebody to wear makeup. You could say this is sex discrimination, or you could say “forget whether it is discrimination — it’s objectionable for reasons wholly apart from whether this is treating women differently than men, or gays differently than straights, or whites and blacks or whatever.” I might not mind wearing a mild amount of makeup, but if I was told I had to, I would be furious.  We can frame the issue that way, and find that it has little or nothing to do with sexism.

Related scholarship:
Catherine Fisk: Privacy, Power, and Humiliation in the Workplace: The Problem of Appearance Regulation, 66 Louisiana Law Review 29 (2006)

Mitu Gulati: The Story of Jesperson v. Harrah's: Makeup and Women at Work, in Employment Discrimination Stories 105-152 (Joel Wm. Friedman ed., 2006) (with Devon Carbado & Gowri Ramachandran)

The “Makeup, Identity Performance & Discrimination” symposium will begin at 8:00 a.m. in room 3041, and is free and open to the public. The Law School is located at the corner of Towerview Road and Science Drive on Duke’s West Campus. Practicing attorneys are eligible for six hours of CLE credit for attending the symposium, which is accredited by the State Bars of North Carolina and South Carolina; certificates of attendance will be provided to attorneys for submission to other state bars. Contact The Duke Journal of Gender Law & Policy at (919) 613-7223 for information on CLE credit.