June 25, 2005

Cathy Gellis: Judge Kozinski asks, and I answer

by Guest Contributor

One of the other things I should mention about myself is that, in addition to my summer clerk job, I'm also working as a swimming teacher. This is my 14th summer being a swimming teacher, and it's quite nice, after all the law stuff where I'm constantly having to do things I've never done before, to get to do something where I have 14 years of experience to draw from. A little experience-driven competency goes a long way to buttressing one's self-esteem.

And it’s not as if teaching swimming lessons doesn't develop skills I can later use as a lawyer. Strategic planning, empathy, tailoring one's communication appropriately for one's audience – these are all things that any swimming teacher and litigator must be able to do. Think convincing a jury is tough? Try getting a stubborn four year old to put his face in the water…

It also now seems that my alternate career has prepared me for significant constitutional inquiry as well. Note the question recently posed by Judge Kozinski in the en banc hearing of Jespersen v. Harrah's:

"What if you employed swim [instructors] and you required they wear bathing suits? … I think it's probably true that women's bathing suits are more expensive."
Well as it happens I can tell him a thing or two about that, having been a swimming teacher every summer (save three) since 1989.

Yes, yes we do wear bathing suits, which, as women, are different than those that men wear. Our anatomy happens to be a bit different, so the garments need to be structured a bit differently as well. It may be true in some instances that because more fabric is involved with women's suits they may cost more than the equivalent men's versions. However, this isn't necessarily true. Why just the other day I just saw a women's Speedo at Marshall's for $15, likely cheaper than your typical men's Speedo at the local sports mart. Prices vary based on where you shop and what you buy more than they necessarily vary by the sex of the intended customer.

Furthermore, even some men – particularly on swim teams – are now wearing torso-covering swimsuits. And with the risk of sunburns and skin cancer, there's a greater impetus for both sexes to cover up more skin. Thus the anatomical differences between men and women have increasingly little bearing on the swimming teacher's uniform.

But indeed, even where there is a disparity between equivalent men's and women's suit prices, the facilities where we work often can absorb it by providing the suits as part of the issued uniform. In fact, I've worked at pools where the women got the better end of the deal, getting not only their torso-covering bathing suit but also a set of men's trunks to use as shorts. (Presumably the men could have gotten a woman's suit with his uniform grant as well, although unlike women and the swim trunks there is likely little constructive use the men could have put a woman's suit towards.)

However, those instances, where there was a specific uniform requirement, applied only to employees who were also lifeguards. For people who were just swim instructors and not on-duty lifeguards, they simply needed to wear their own generic bathing suit (in one instance the pool required it to be navy, but there was no other requirement beyond that, save a prohibition on string bikinis). So even if instructors purchase a bathing suit in preparation of the teaching job, they will still have a perfectly usable bathing suit that they can use on any other occasion calling for one. If a female instructor happens to spend more on the suit than a male one, she may also have greater occasion to use it, thus amortizing her cost more favorably than the male colleague might.

In sum, with all due respect to Judge Kozinski, it is a bad analogy to compare the uniform requirements of Harrah's with the uniform requirements of swim instructors. Not only is the garment-cost issue a red herring, but in Harrah's the issue was about decorating one's skin, not covering it up. And in the case of the swimming teacher, both sexes have the same needs in that area – to make sure they are slathered with enough sun cream so as not to burn. Sun cream is exactly the same for both sexes.

Now, perhaps a swim facility could also demand that women also wear make-up while they teach. But that would be just as pointless as Harrah's requiring it for its workers. There's nothing intrinsic about the activities of teaching stroke mechanics or delivering drinks that requires such an accentuated highlighting of one's sex. And that's what make-up's about – highlighting one's femininity. (Yes, as Kozinski pointed out there are men who choose to wear make-up as well. But notice in the implicit tone of derision that make-up is still generally viewed as a femininity-enhancing endeavor.)

It is inequitable to require women to highlight their femininity, when men are obviously not under the same obligation. Not only does it amount to an additional financial burden not equivalently born by their male colleagues, but the very requirement by design undermines their equality. It tells women that they are not valued for the things they can do but rather for how they look. And they need to look exactly how society's hegemonic biases tell them to look – as pretty objects of sexual allure.

No, the swim instruction is a bad analogy to draw. Because even as we instructors all teach in our thin, spandex garments that leave little to the imagination, we stand there as individuals, valued for our talents as teachers and not as sexualized creatures for whom our sex is an operative factor in our employment. For it to be otherwise would be unconstitutional.

June 25, 2005 02:49 PM | TrackBack
Comments

Hello Cathy,

I'll have to leave the pricing issue completely alone as you seem to have the backgroud in that arena, but I have to disagree with you about your analysis of the Harrah's question.

You mention how:

"It is inequitable to require women to highlight their femininity, when men are obviously not under the same obligation. Not only does it amount to an additional financial burden not equivalently born by their male colleagues, but the very requirement by design undermines their equality. It tells women that they are not valued for the things they can do but rather for how they look. And they need to look exactly how society's hegemonic biases tell them to look – as pretty objects of sexual allure."

It may be true that the women are given different requirements, but that doesn't equate to what you are saying.

Men must wear clothes, dress in a fashion, and cut their hair so that they look masculine. I could make the same argument from the male perspective declaring it "inequitable" that I must have short cropped hair. (A requirement at Harrahs) I could even claim that this amounts to an additional financial burden that the female employees don't have.

Your argument, though true, doesn't actually get to the meat of this case. The question isn't whether there can be different requirements that force them to look as "society's hegemonic biases tell them to look". But rather, where to draw that line.

There is a difference between the two sexes, and in employment an employee may require a man to shave his beard, to keep his hair above his ears, to not wear jewlery in his ears, and definately can make sure the employee isn't wearing a dress. The courts have supported this already, what makes makeup any different? Are you going to tell me that putting something on your face for decoration is more unfair than having to cut all the hair off your face? You can take the makeup off after work, while I am left hairless.

Posted by: Sean Sirrine at June 25, 2005 03:31 PM

The only argument I might see for the beard-ban is maybe one of hygiene. Otherwise I'm happy to fight alongside you against arbitrary impositions of vanity standards. I tend to think they are largely pointless, though I can generally defer to all the people who think there's a time and place for looking more spiffy (eg, wearing suits when we go to court).

Where I cannot do so, however, is when they require one sex to do something to become presentable in a way that has nothing to do with generally looking nice, but rather sexual attractiveness. And particularly in a way that is a burden on one sex and not the other.

Make-up is a burden. Not just financial, but physical. It's a mandatory battery that you need to put something on your skin, something where the only benefit of doing so is to make you more sexually attractive. I also file skirts under the same category - they constrict mobility, and are inherently designed to make the female form more flattering. I don't see why my figure needs to be flattering to go to court, to serve a drink, or to do anything so wholly unrelated to my private, sexual life. So I refuse to wear make-up or wear skirts except under the few instances where that type of attractiveness is the effect I'm shooting for. And I don't see why I should be deprived of opportunities as a result, since this choice to eschew them has no bearing on my competency as an employee and is not one that men will be faulted for making themselves.

Posted by: Cathy at June 25, 2005 04:37 PM

I'm glad you'd fight along side me on the beard standard, however it would be entirely pointless. The courts have already found this to be an acceptable requirement.

You seem to be focused on makeup as somehow sexual, but that doesn't come into the equation. It is simply a matter of femininity vs. masculinity , which as I've said, the courts have found to be reasonable.Also, I'm not quite sure how placing makeup on yourself is battery.

Posted by: Sean Sirrine at June 25, 2005 05:55 PM

I think you've missed the point, Sean. The implementation of Title VII does not exist to indolently fall back on faulty historical analysis, but rather is intended to achieve gender-equality in the workplace. Such equality clearly can never come to fruition if tomorrow's decisions are based on yesterday's ignorant reasoning. The question in this case was whether the "Personal Best" policy of Harrah's imposed an unequal burden on females than males...not where to draw the line in terms of what female employees are required to do that similarly situated males can be required NOT to do. Clearly there is a burden imposed on one gender, where there simply isn't a burden placed on the other.

Posted by: Stacy at September 10, 2006 02:56 PM
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