Activist Judges Approve Sex Stereotypes By PAUL GLUSMAN Commentary

Tuesday January 04, 2005

Those activist judges that President Bush warned us about have struck again! 

They’ve taken the law and twisted it around to fit their own personal agendas without regard for what the people’s representatives enacted. In the case of Jesperson v. Harrah’s Operating Company, announced on Dec. 28, 2004, the activist judges eviscerated the civil rights laws against sex discrimination. 

Darlene Jesperson was employed by Harrah’s Club in Reno for 20 years as a bartender. She was an outstanding employee. Manag ement commented that she was “highly effective” and had a “very positive” attitude. Customers praised her work. 

During the 1980s and 1990s management encouraged female employees to wear makeup. Jesperson tried it, but felt uncomfortable. She felt that ma keup forced her to be feminine and to become dolled up like a sexual object. She also felt that it hindered her credibility in dealing with unruly, intoxicated patrons. So she stopped wearing it. She continued working at Harrah’s for another ten years, co ntinuing to receive excellent reviews. 

In 2000, Harrah’s applied new appearance standards on its employees. It required them to be “firm and body toned” to wear uniforms, and be well groomed. In addition, there were different standards for male and female bartenders. Females were required to wear makeup, wear their hair teased, curled or styled, wear stockings and nail polish. Males were forbidden to wear makeup or nail polish, were to maintain short hair and trimmed fingernails. (The new standards didn’t say anything about men wearing or not wearing stockings. One wonders how they left that out.) 

Jesperson objected to wearing makeup, claiming that males were not required to do that. She refused to wear makeup and was fired. Jesperson then sued under th e sex discrimination sections of Title VII. The trial court dismissed the case and a panel of the 9th Circuit Court of Appeal upheld the dismissal by a 2-1 majority, ruling that forcing women to wear makeup and not requiring (actually forbidding) men to w ear it did not discriminate and was not stereotyping sex roles.  

Title VII of the U.S. Civil Rights laws forbids employers to discriminate against people because of sex. In 1989, the U.S. Supreme Court above the 9th Circuit held that adverse employment actions based on sexual stereotyping were illegal. In Price Waterhouse v. Hopkins, a female employee had been denied promotion to a partnership because she was seen as not being feminine enough. The Supreme Court held that she could prevail in her lawsuit stating, “as for the legal relevance of sex stereotyping, we are beyond the day when an employer could evaluate employees by assuming or insisting that they match the stereotype of their group, for . . .Congress intended to strike at the entire spectrum o f disparate treatment of men and women resulting from sex stereotypes.”  

One would think that the grooming requirements for women requiring makeup placed an unequal burden for them to meet than the requirements for men who could not wear makeup. One also would think that Jesperson was a victim of sexual stereotyping. 

But not to the two activist conservative judges in the majority. They have decided that the America may have been “beyond the day” when sex discrimination was allowed in 1989, but that we a re back to that day now, that, in short, we are living in a rerun of the 1950s, before the passage of the Civil Rights Act.  

Someone should tell President Bush about these activist judges. Other right-wing activist courts recently have eviscerated or ove rruled the Americans with Disabilities Act, the Violence against Women Act, and the federal laws preventing carrying firearms near schools. Soon we will see judges thwart the will of the people of California who voted to legalize marijuana for medical use. In all of these instances, including the Jesperson case, judicial activists have struck down or interpreted out of existence laws that were duly enacted by elected representatives to protect people other than owners of large corporations or right wing r eligious extremists. 

Yet, somehow, the president is only concerned about judges that may allow gays to enter into marriages. The more cynical among us may think that he is outcome-oriented, and that to him judicial activism only means judges who don’t ru le the way he likes. Obviously, when President Bush attacks “judicial activism” he must mean all judicial activism  

I think that the president would appreciate it very much if people were to write to him to let him know that many of his own and his Repub lican predecessors right wing appointments have been activist judges who have nullified democratically enacted laws in order further the narrow ends of large business interests and religious extremists. In view of the president’s distaste for judicial act ivism, and in light of his recent mandate, I am quite sure that the president will modify his appointments and name as judges those who will no longer take the will of the people into their own hands and rewrite out of existence laws protecting women, minorities, the disabled, schoolchildren and employees.