The slings and arrows of at-will employment
Wed, Feb 1, 2012 (4:22 p.m.)
After her billionaire husband bought Treasure Island in 2009, former Miss Ukraine Oleksandra Nikolayenko-Ruffin unleashed her glam vision on its spa and salon, telling Robin Leach: “I want our guests to feel enveloped by beauty ...”
According to six former employees, Nikolayenko-Ruffin’s vision affected more than the spa’s décor. A 2010 lawsuit filed in federal court claimed that the women were subjected to age discrimination following an audition process to keep their jobs. Last week, U.S. District Judge Roger Hunt threw out the suit. The plaintiffs, aged 47-60 when they were let go, had various incidences of poor or negative work performance in their files such that Nikolayenko-Ruffin’s alleged comment about cultivating a crew of “young beautiful girls” didn’t really come into play.
It might never have mattered. First, because Nevada is an “at-will” state, meaning employers can fire “for good cause, or bad cause, or no cause at all.” Second, because age seems less at issue here than appearance, and discrimination law barely touches the subject.
Michigan is the only state with an outright ban on appearance discrimination, though Stanford law professor Deborah Rhode notes in her book, The Beauty Bias: The Injustice of Appearance in Life and Law, that it averages only one such court case a year. Plaintiffs who get that far have a hard go, Rhode asserts, referring to a famous Nevada case in which bartender Darlene Jespersen fought her firing from Harrah’s in Reno after she opposed a new policy that female employees wear full makeup. A Nevada court ruled in favor of Harrah’s, and a federal appeals court upheld the decision, saying Jespersen had not proven that the dress code was disproportionately burdensome to women.
Sex appeal fuels the Vegas machine. Most locals don’t bat an eye at job postings that tack on “model,” sidestepping the debate about whether looks can be a “bona fide occupational qualification.” Do wrinkles make you an inferior manicurist? No, but should Nikolayenko-Ruffin be legally bound to care when it comes to choosing who represents her brand?
“Our society has many important goals, and abolishing discrimination based on particular characteristics is only one of them,” writes William R. Corbett in the Duke Journal of Gender Law & Policy. “A very strong goal at the other extreme is respecting employers’ prerogatives to operate their businesses in ways they deem appropriate to create jobs, generate profits and contribute to a robust economy.” He also draws an interesting parallel between appearance and disability. In this city, it’s more than theoretical.