In this Article, we show how the adoption of increasingly sophisticated forms of marketing and branding strategies by service businesses creates property-like interests separate and distinct from workers’ physical and mental labor, from which employers profit: “branded service.” We then analyze the role that law has played in reinforcing the practice of branding. In particular, work law defers to managerial prerogative to construct the business image and to control the workforce as the public face of that image, affirming the employer’s power under the doctrine of employment-at-will to command adherence to appearance codes. The combined effect of the employment-at-will rule and workers’ lack of bargaining power at an individual level thus permits employers to extract this additional value from workers above and beyond the compensated value of their labor, without cost. In the context of unionized workforces covered by collective bargaining agreements, companies have – at most – been required to demonstrate a reasonable relationship between the grooming code and the business’s effort to project a corporate image that it believes will result in a larger market share. In a small number of cases, sexualized branding that exposes workers to sexual harassment or is predicated upon sexual stereotypes not essential to performance of the job has been curtailed by the antidiscrimination mandate of Title VII. However, challenges under Title VII have been effective only where corporate branding is at odds with community norms; where the branding is consistent with community norms that encode sexual stereotypes, customer preferences and community norms become the business justification for branding.
We explore the marketing of branded service and the law’s response through an analysis of Jespersen v. Harrah’s Operating Co., in which the Ninth Circuit rejected a female bartender’s Title VII challenge to Harrah’s “Personal Best” grooming and appearance policy, which required (among other things) that women wear makeup, a practice that Darlene Jespersen found both personally and sexually demeaning. We examine the branded service strategy that Harrah’s adopted, explain how it created a new and valuable property-like right for Harrah’s, and describe Jespersen’s reaction to her sexualized commodification. We discuss the law’s failure to respond to her individual claim, regardless of how it was bracketed. In analyzing the legal doctrine that emerged under Title VII, we pay particular attention to the ways in which judicial acceptance of the cultural stereotypes that shaped Harrah’s branded service limited the law’s ability to respond. Next, we place Harrah’s sexualized branding in the historical context of the gendered structure of work in the gaming industry and the bartending occupation.
Finally, we make suggestions for reframing claims arising from branded service and the appearance and grooming codes associated with it. We urge reconceptualization of sex-stereotyped corporate branding as a collective harm to workers and evaluate avenues of resistance, including union organizing and collective bargaining, class-action sex discrimination or sexual harassment claims, and public consciousness-raising by social justice and community groups. Although these strategies, too, are limited – by the law’s assumptions about the primacy of employer property rights, the tendency of majoritarian labor unions to focus on the economic interests common to all workers in the bargaining unit (rather than issues pertaining directly to gender identity), and judicial hostility toward collective action more generally – they afford the most powerful lever for altering community norms and, ultimately, for reshaping the values that guide the law.
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Prior posts at this blog about the Jespersen case can be found here, and here.
