Law: How to lose a case by being dumb.
Dec. 29th, 2004 12:06 pm![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
sauergeekA female bartender who refused to wear makeup at a Reno, Nevada, casino was not unfairly dismissed from her job, a U.S. federal appeals court ruled Tuesday. (Opinion available at the 9th Circuit website.)
The bartender who sued her employer lost because she (or more likely her lawyer) was an idiot:
Jespersen v. Harrah's Operating Company at 17469 (emphasis in original)
Jespersen had to demonstrate that the total time and expense requirements for women were not only different, but sufficiently different from the requirements for men that the burden imposed on the genders was unequal to the point of being discriminatory. Id. The dissent says that instead of granting summary judgment[1], the trial court should have held a trial to determine how much time and money makeup cost. Jespersen at 17472-73 (dissenting). However, that would have required that Jespersen present specific numbers on the subject for Harrah's to disagree with. Jespersen at 17469. (Instead, Jespersen merely claimed that women would expend more time and money than men on makeup, Id., which I suspect Harrah's agreed with.) It also appears that the dissent would have taken judicial notice[2] that the burdens of complying with the Harrah's policy were unequal. Jespersen at 17473 (dissenting).
The dissent further disagrees with the majority on whether Harrah's can impose gender-differentiated, but equally burdensome, standards of grooming and appearance on its employees. Jespersen at 17474-75 (dissenting). The majority says that Harrah's can do so; the dissent says no. Id, Jespersen at 17471. I'm inclined to agree with the majority, as to do otherwise would come close to a judicial attempt to regulate fashion -- which I think the courts would not want to do.
Finally, the majority tests the total burden of the Harrah's grooming and appearance policy on men against the total burden on women. Jespersen at 17468. The dissent would compare them point-for-point, and says that if there is a point for one gender that does not apply to the other, the policy is inherently discriminatory. Jespersen at 17476-77 (dissenting). Again, I'm inclined to agree with the majority on this, as again to do otherwise comes close to judicial regulation of fashion.
I think this is an unfortunate decision, but not because of the majority judges. The fault lies with Jespersen's lawyers, who failed to produce actual numbers for the time and money spent on makeup. These numbers likely would have produced a lot more detail about the time and money expended on all aspects of the policy, and disagreement about the numbers, requiring a full trial. I suspect had there been a trial, this case would have come out differently.
[1] Harrah's was granted summary judgment by the trial court, and the 9th affirmed that decision. Summary judgment is used when "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law". Federal Rules of Civil Procedure, rule 56(c). Here, Harrah's moved for summary judgment and it was granted.
[2] Judicial notice permits a judge to admit facts without any evidence presented. "A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisidiction of the trial court or (2)capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Federal Rules of Evidence, rule 201(b). Here, while the judges were willing to take judicial notice that using makeup took more time and money than not using makeup, they were properly unwilling to place any specific numbers on the difference.
The bartender who sued her employer lost because she (or more likely her lawyer) was an idiot:
Jespersen contends that the makeup requirement imposes "innumerable" tangible burdens on women that men do not share because cosmetics can cost hundreds of dollars per year and putting on makeup requires a significant investment in time. There is, however, no evidence in the record in support of this contention. Jespersen cites to academic literature discussing the cost and time burdens of cosmetics generally, but she presents no evidence as to the cost or time burdens that must be borne by female bartenders in order to comply with the makeup requirement. 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 the "Personal Best" 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 the "Personal Best" policy imposes on male bartenders either, Jespersen’s claim fails for that reason alone.
Jespersen v. Harrah's Operating Company at 17469 (emphasis in original)
Jespersen had to demonstrate that the total time and expense requirements for women were not only different, but sufficiently different from the requirements for men that the burden imposed on the genders was unequal to the point of being discriminatory. Id. The dissent says that instead of granting summary judgment[1], the trial court should have held a trial to determine how much time and money makeup cost. Jespersen at 17472-73 (dissenting). However, that would have required that Jespersen present specific numbers on the subject for Harrah's to disagree with. Jespersen at 17469. (Instead, Jespersen merely claimed that women would expend more time and money than men on makeup, Id., which I suspect Harrah's agreed with.) It also appears that the dissent would have taken judicial notice[2] that the burdens of complying with the Harrah's policy were unequal. Jespersen at 17473 (dissenting).
The dissent further disagrees with the majority on whether Harrah's can impose gender-differentiated, but equally burdensome, standards of grooming and appearance on its employees. Jespersen at 17474-75 (dissenting). The majority says that Harrah's can do so; the dissent says no. Id, Jespersen at 17471. I'm inclined to agree with the majority, as to do otherwise would come close to a judicial attempt to regulate fashion -- which I think the courts would not want to do.
Finally, the majority tests the total burden of the Harrah's grooming and appearance policy on men against the total burden on women. Jespersen at 17468. The dissent would compare them point-for-point, and says that if there is a point for one gender that does not apply to the other, the policy is inherently discriminatory. Jespersen at 17476-77 (dissenting). Again, I'm inclined to agree with the majority on this, as again to do otherwise comes close to judicial regulation of fashion.
I think this is an unfortunate decision, but not because of the majority judges. The fault lies with Jespersen's lawyers, who failed to produce actual numbers for the time and money spent on makeup. These numbers likely would have produced a lot more detail about the time and money expended on all aspects of the policy, and disagreement about the numbers, requiring a full trial. I suspect had there been a trial, this case would have come out differently.
[1] Harrah's was granted summary judgment by the trial court, and the 9th affirmed that decision. Summary judgment is used when "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law". Federal Rules of Civil Procedure, rule 56(c). Here, Harrah's moved for summary judgment and it was granted.
[2] Judicial notice permits a judge to admit facts without any evidence presented. "A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisidiction of the trial court or (2)capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Federal Rules of Evidence, rule 201(b). Here, while the judges were willing to take judicial notice that using makeup took more time and money than not using makeup, they were properly unwilling to place any specific numbers on the difference.
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Date: 2004-12-29 05:57 pm (UTC)no subject
Date: 2004-12-29 06:09 pm (UTC)no subject
Date: 2004-12-29 06:49 pm (UTC)Though I also object to having to wear a suit when women can get away with "something smart" since suits are expensive and "something smart" is cheaper.
no subject
Date: 2004-12-30 12:54 am (UTC)no subject
Date: 2004-12-30 12:58 am (UTC)(b) grrr, that's what I get for arguing with a trained thinker :)
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Date: 2004-12-30 06:32 am (UTC)Another reason why you're the lawyer and I'm not, I suppose... See also: why leafie never really went far with networking. Info I just can't absorb.