Working for Justice

Gender Discrimination? Because Makeup Doesn’t Grow on Trees

Before I go to work every morning, I engage in a ritual that my husband has never needed to.  As the New York Times reports, this ritual is can make women appear confident, capable, reliable, or likable in the workplace, and can even lead to a higher salary when compared to other women.  What is it?  Unfortunately, it has nothing to do with personality, motivation, or actual competence.  The secret is makeup, applied on a foundation of stereotypical expectations about how I, a woman, should present in the workplace.

Research has long confirmed that employment discrimination based on personal appearance has a real impact on workers: attractive individuals earn more money than their counterparts of average attractiveness, to the tune of positive judgments about competence and thousands of dollars each year.  But more recently, a 2016 study cited in the Washington Post revealed that, for women, this “beauty” premium is entirely attributable to societal grooming standards—how a woman styles her hair, wears her clothes, and, of course, whether she wears makeup.  In other words, good-looking men and good-looking women both earn more than their counterparts (setting aside the $7,000 gender pay gap that the researchers found) but for women to be “good-looking” enough to receive that pay bump, they had to style their hair and makeup in a way that conformed to people’s expectations about their appearance.  Some call this the Makeup Tax.

How much is the Makeup Tax?  Aside from the psychological and cultural cost of perpetuating beauty double-standards, there’s a serious financial cost for women.  According to Mint.com, the average American woman spends $15,000 on makeup over her adult life—over $200 annually.  Adding in the cost of trips to the hair salon and manicurist and the opportunity cost of hours and minutes spent blow-drying, styling, and applying each day, and the Tax begins to skyrocket.  Even if a woman’s makeup routine takes only fifteen extra minutes each morning, five days per week across, say, fifty work weeks per year, then she’s spending more than 60 hours every year—a work week and a half—just applying makeup.  Women, then, either pay this extra cost or are financially and professionally penalized for refusing to.  Men, on the other hand?  Their un-made-up faces are perfectly acceptable for the workplace.

It is bad enough that there are implicit societal expectations about working women that hinge judgments about competence, likeability, and even salary on whether a woman is wearing makeup.  It’s worse that some employers still require it.  In the landmark gender discrimination case Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), the Supreme Court held that an employer could not discriminate against a female employee whose appearance and demeanor did not match feminine sex stereotypes.  That would seem to cover this type of case exactly, wouldn’t it?  Gender bias amongst employers leads to expectations that women appear more feminine by paying the Makeup Tax each day.  The Ninth Circuit in Jespersen v. Harrah’s Operating Co., 444 F.3d 1004 (9th Cir. 2006) disagreed.  Jespersen was a female bartender at Harrah’s Reno casino who objected to grooming requirements that she, in addition to wearing styled hair, stockings, and clear, white, pink, or red nail polish each shift, must also wear face powder, blush, mascara, and lip color.  Men, conversely, were only required to keep their nails clean and neatly trimmed.  The en banc Ninth Circuit panel upheld that these sex-differentiated grooming requirements.

With this holding, the court clearly missed two serious implications of the Makeup Tax.  First, as Judge Pregerson recognized in his dissent, requiring women to conform to a sex stereotype by imposing a “facial uniform” for women, while not requiring any similar uniform for men, is clearly sex discrimination.  Second, as Judge Kozinski highlighted, the money and time that it takes to wear makeup every day impose a substantial burden on women.  As he succinctly put it: “Harrah’s policy requires women to apply face powder, blush, mascara, and lipstick. You don’t need an expert witness to figure out that such items don’t grow on trees.”

Makeup doesn’t grow on trees, nor does it apply itself.  And when it is a requirement—whether written or unwritten—there’s little women can do to avoid the time and expense it brings with it.  Yet still the expectation persists, and women who refuse to pay the Makeup Tax are penalized, both monetarily and with judgments about their performance in the workplace.  As Deborah Rhode, a law professor at Stanford Law School and author of The Beauty Bias has commented, the world would be a better place if women were judged on their competence and not their appearance.  To get to that better world, women (and their employment lawyers) have a long history of gender bias to combat—unfortunately, some of it sanctioned by the courts.

Sanford Heisler Sharp, LLP

Sanford Heisler Sharp, LLP

Sanford Heisler Sharp, LLP is a nationwide litigation law firm with offices in New York, Washington, DC, San Francisco, San Diego, Nashville, and Baltimore. We represent individuals against powerful interests. We act as a private attorney general in support of the private and public good. Learn More

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