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Appearance Discrimination

Spencer H. Silverglate

Heui Young Choi

Clarke Silverglate & Campbell, P.A.

799 Brickell Plaza, Suite 900

Miami, Florida 33131

(305) 377-0700

MR. SPENCER H. SILVERGLATE is the managing shareholder of the law firm Clarke Silverglate & Campbell, P.A. in Miami. His practice focuses on complex commercial and employment litigation. Mr. Silverglate is the immediate past president of the Florida Defense Lawyers Association and is active in the DRI’s and IADC’s Employment Law Committees.

MS. HEUI YOUNG CHOI is an associate with the law firm Clarke Silverglate & Campbell, P.A. in Miami. Ms. Choi focuses her practice in complex commercial and employment litigation.

Table of Contents

  1. Introduction
  2. Appearance Discrimination Under the ADA
    1. Weight
    2. Disfigurement
  3. Appearance Discrimination Under Title VII
    1. Weight as Gender Discrimination
    2. Lack of Attractiveness as Gender Discrimination
    3. Dress Code
      1. Dress Code as Gender Discrimination
      2. Dress Code as Religious Discrimination
      3. Dress Code as Racial Discrimination
    4. Behavior as Gender Discrimination
  4. Conclusion

Appearance Discrimination

I. Introduction

In November 1994, the ABC news program “20/20” used hidden cameras to expose appearance discrimination in hiring decisions. The 20/20 crew sent two men and two women on job interviews. All candidates presented identical experience and qualifications. The only difference was that one of the women and one of the men were more attractive than their counterparts. In eight interviews, the more attractive applicant was hired every time.

Appearance discrimination has not changed in the decade following the 20/20 segment. On July 19, 2005, USA Today reported a growing body of research confirming that physical appearance affects job opportunities. Stephany Armour, Your Appearance Can Affect the Size of your Paycheck, USA Today, July 19, 2005. The article cites several studies demonstrating that workers with below-average looks tend to earn significantly less per hour than their above-average-looking colleagues. Also mentioned is a New York University study which found that an increase in a woman’s body mass resulted in a decrease in her family income.

While appearance discrimination in the workplace remains as prevalent as ever, corporate culture is rapidly changing. Not only is the U.S. workforce becoming more diverse at all levels, fewer employees are willing to compromise their perceived right of personal expression through their outward appearance for the sake of “fitting in” with traditional corporate values. Norma Carr-Ruffino, Making Diversity Work: New Culture, New Style, (Feb. 28, 2006). Workers today expect greater accommodation for their unique needs and identities than ever before. Id. The problem is that the employee’s desire for accommodation often conflicts with the employer’s need to control its public image and corporate culture through dress codes and grooming policies. When strongly held views by competing interests conflict, the predictable result is litigation.

A handful of state and local governments have legislated against appearance discrimination. The District of Columbia, for example, prohibits employment discrimination based on personal appearance, including manner and style of dress and personal grooming. D.C.Code § 1-2501, et seq. Santa Cruz, California bans employment discrimination based on physical characteristics and mannerisms beyond the person’s control. Santa Cruz Mun. Code 9.83. A Michigan statute prohibits discrimination based on weight and height, but not other aspects of physical appearance. Mich. Comp. Laws § 37.2202(1)(a).

While federal antidiscrimination statutes do not specifically cover appearance discrimination, plaintiffs have argued, often successfully, that appearance-based employment decisions implicate other forms of proscribed conduct. The following is a discussion of selected cases addressing appearance discrimination under federal and state law against the backdrop of ever changing social norms.

II. Appearance Discrimination Under the ADA

A. Weight

Adverse employment actions based on weight may violate the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. § 12101, et seq. The ADA prohibits employers with 15 or more employees from discriminating against “qualified individuals with disabilities” in job application procedures, hiring, firing, compensation, advancement, training and other terms, conditions and privileges of employment. 42 U.S.C. § 12112(a).

A “qualified individual with a disability” is an individual with a “disability” who, “with or without reasonable accommodation, can perform the essential functions of the employment position which such individual holds or desires.” 42 U.S.C. §§ 1211(8).

The term “disability” means (a) “a physical or mental impairment that substantially limits one or more major life activities,” (b) “a record of such an impairment” or (c) “being regarded as having such an impairment.” 42 U.S.C. §§ 12102(2) (emphasis added).

The United States Equal Employment Opportunity Commission (“EEOC”) regulations define “physical impairment” as “any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin, and endocrine.” 29 C.F.R. § 1630.2(h)(1). Significantly, impairments do not include “physical characteristics such as eye color, hair color, left-handedness, or height, weight, or muscle tone within ‘normal’ ranges and are not the result of a physiological disorder.” 29 C.F.R. § 1630.2(h) (App.) (emphasis added).

The term “substantially limiting” means, among other things, “unable to perform a major life activity that the average person in the general population can perform” or “significantly restricted as to the condition, manner, or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform the same major life activity”. 29 C.F.R. § 1630.2(j) (emphasis added).

According to EEOC regulations, the term “major life activity” includes walking, seeing, hearing, speaking, breathing, learning, performing manual tasks, caring for oneself, and working. 29 C.F.R. §1630.2(i). This list is not exhaustive. Bragdon v. Abbott, 524 U.S. 624 (1998).

In Cook v. State of Rhode Island, Dept. of Mental Health, Retardation, and Hospitals, 10 F.3d 17 (1st Cir. 1993), a job candidate applied for the position of institutional attendant with a state-run residential facility for retarded persons. She was five feet, two inches tall and weighed over 320 pounds. During the routine pre-hire physical, she was found to be morbidly obese. However, no limitations were noted that affected her ability to do the job. Notwithstanding that the applicant passed the physical, the facility declined to hire her. It claimed that her morbid obesity compromised her ability to evacuate patients in case of emergency and put her at greater risk of developing weight-related ailments. The applicant sued under the Rehabilitation Act (RHA), which prohibits discrimination against the disabled in federally funded programs. The RHA contains a similar definition of disability as the ADA.

The applicant prevailed at trial, and the First Circuit Court of Appeals affirmed, finding that she proved both that she had a physical impairment and was regarded as having one. As to the former, the applicant offered expert testimony that morbid obesity is a physiological disorder involving a dysfunction of both the metabolic system and the neurological appetite-suppressing system. Id. at 23. As to the latter, the court observed that the facility treated the applicant as if she had an impairment given its stated reasons for refusing to hire her (inability to evacuate patients and risk for weight-related ailments). Id.

The appellate court rejected the facility’s various arguments to the contrary. First, the facility argued that since obesity is a “mutable” characteristic, it is not covered by the RHA. The court, however, observed that while weight is mutable, the plaintiff’s underlying metabolic condition may linger even after weight loss. Id. at 24. Moreover, the facility regarded plaintiff’s condition as immutable. Id.

Second, the court rejected the contention that since morbid obesity is either caused or exacerbated by voluntary conduct, it cannot constitute an impairment under the ADA. While the court questioned this premise in light of the expert testimony presented, it observed that the RHA is not limited to involuntary impairments. The court noted that the RHA clearly covers conditions such as alcoholism, AIDS, diabetes, and lung cancer, all of which may be caused or exacerbated by voluntary activity. Id. at 24.

The court similarly rejected the argument that the applicant failed to prove that she was substantially limited in a major life activity. The court cited the facility’s main witness, a physician, who testified that he refused to hire the applicant, believing that her morbid obesity interfered with her ability to walk, lift, bend, stoop and kneel. Id. at 25. The witness further testified that these limitations foreclosed a broad range of employment options in the health care industry. Id.

Finally, the court held that the applicant was otherwise qualified for the job since she passed the physical administered by the facility’s own nurse. Id. at 27.

While morbid obesity may qualify as a disability, simply being overweight does not. In Andrews v. State of Ohio, 104 F.3d 803 (6th Cir. 1997), police officers sued under the ADA and RHA claiming that the State of Ohio discriminated against them by perceiving that they were disabled. Specifically, the officers claimed that they suffered adverse job actions because they exceeded weight limitations or failed physical fitness tests. The Sixth Circuit court affirmed dismissal of the complaint, holding that the perceived disability must, if it actually existed, constitute a disability under the statutes. Id. at 809-10. Because the complaint did not allege that the police department perceived the officers weight to be beyond a normal range and caused by a physiological disorder, it was fatally defective. Id. at 810.

The same result was reached in Francis v. City Meriden, 129 F.3d 281 (2d Cir. 1997). A firefighter claimed his employer disciplined him for exceeding fire department weight guidelines in violation of the ADA and RHA. In affirming dismissal of the complaint, the Second Circuit held that failure to allege that the plaintiff was perceived as suffering from a weight-related physiological disorder was fatal to the claim:

It would be inconsistent with these purposes to construe the acts to reach alleged discrimination by an employer on the basis of a simple physical characteristic, such as weight. This would make the central purpose of the statutes, to protect the disabled, incidental to the operation of the “regarded as” prong, which would become a catch-all cause of action for discrimination based on appearance, size, and any number of other things far removed from the reasons the statutes were passed.

Id. at 287 (citations omitted).

These cases demonstrate that an overweight plaintiff ordinarily will not prevail under the ADA or RHA. However, in cases in which the plaintiff’s weight is outside the normal range and caused by a physiological disorder, a claim may lie, assuming that the plaintiff meets the other statutory requirements (e.g., substantially limited in a major life activity but is able to perform the job with or without an accommodation).

B. Disfigurement

Appearance claims under the ADA are not limited to weight. In Talanda v. KFC National Management Co., 140 F.3d 1090 (7th Cir. 1998), the plaintiff was fired after he hired an employee with several teeth missing to work the front counter at a KFC restaurant and then refused to move the employee to a position out of view of the customers. The supervisor remarked that the employee’s appearance was not an “appetizing situation” and that it was “really a turn-off to me as a customer to see that mouth.” Id. at 1093. The employee claimed that it was “morally and legally wrong” to obey his supervisor’s directive. He sued his employer for retaliation under the ADA. The district court granted summary judgment for the employer and the Seventh Circuit affirmed.

The Talanda court explained that whether the employee with the missing teeth had either an “impairment” or was regarded as having one was irrelevant if the impairment did not “substantially limit one or more major life activities.” Id. at 1097. To meet this standard, a person must be “significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes. Id. Because the employee with missing teeth was barred only from working at the front counter, the plaintiff could not have had a reasonable belief that he was disabled. The Talanda court, however, did not foreclose future facial disfigurement cases under the ADA: “We do not mean to imply that facial disfigurement, including facial disfigurement caused by dental problems, can never be a disability for purposes of the ADA. Such an impairment can be so severe as to limit, or be perceived as limiting, the employee in major life activity.” Id. at 1098 n.13.

III. Appearance Discrimination Under Title VII

A. Weight as Gender Discrimination

Weight restrictions which do not violate the ADA or RHA may still be found discriminatory as gender discrimination under Title VII and Sections 1981 and 1983. Courts recognize two types of gender discrimination: disparate treatment and disparate impact. See International Bhd. of Teamsters v. United States, 431 U.S. 324, 335 n.15.

Disparate treatment arises when an employer treats some employees less favorably than others because of their sex. Id. However, even overt disparate treatment may be permissible if it is justified as a bona fide occupational qualification (“BFOQ”). 42 U.S.C. § 2000e-2. A BFOQ is a qualification that is reasonably necessary to the normal operation or essence of an employer’s business. Id.

Disparate impact arises when an employer’s practice is facially neutral but in fact affects one group more harshly than another. See International Bhd. of Teamsters, 431 U.S. at 335 n.15.

One example of a problematic weight restriction under Title VII is Frank v. United Airlines, Inc., 216 F.3d 845 (9th Cir. 2000). During the 1960’s and early 1970’s, the standard practice among large commercial airlines was to hire only women as flight attendants. Id. at 847-48. The airlines required the flight attendants to remain unmarried, to refrain from having children, to meet weight and appearance criteria, and to retire by the age of 35. Id. After a court in 1971 found the female-only policy to be discriminatory, the airlines began hiring male flight attendants. Id. (citing Diaz v. Pan Am. World Airlines, Inc., 442 F.2d 385 (5th Cir. 1971)).

United Airlines maintained a weight requirement for its flight attendants but abandoned it in 1994. Between 1980 and 1994, however, United required flight attendants to weigh between 14 and 25 pounds less than their male colleagues of the same height and age. United’s weight table for men during this period was based on a table of desirable weights and heights published by the Metropolitan Life Insurance Company (MetLife). The airline’s weight table for women was based on a table of maximum weights established by Continental Airlines. A comparison of the men’s and women’s tables revealed that the men’s maximum weight corresponded to large body frames on the MetLife’s charts, but generally the women’s maximum weight corresponded to women’s medium body frames on the MetLife charts.

The 13 named plaintiffs attempted to lose weight by various means, including severely restricting their caloric intake, using diuretics, and purging, but were unable to comply with United’s maximum weight requirements. Id. United disciplined plaintiffs for failing to meet the weight requirements. The female flight attendants filed a class action against United alleging discriminatory maximum weight requirements under Title VII and the ADA.

As to the Title VII claim, United argued that the weight tables were permissible “grooming” or appearance standards. Id. at 854. The Ninth Circuit, however, found the weight policy to be facially discriminatory because it treated women and men disproportionately. Id. Furthermore, the court concluded that United offered no evidence to show that the weight standard was a BFOQ. United made no showing that having disproportionately thinner female flight attendants had anything to do with their ability to perform their duties: greet passengers, push carts, move luggage and provide physical assistance in emergencies. Id. at 855.

As to the ADA claim, the court affirmed summary judgment, finding no evidence that plaintiffs’ eating disorder substantially limited a major life activity. Id. at 856-57. The court explained that although eating disorders may constitute a disability under the ADA, plaintiffs had not demonstrated that their eating disorders affected major life activities. Id.

The lesson from Frank is that an employer may adopt different weight standards for men and women, but the standards may not impose an unequal burden on one of the sexes unless it can be justified as a BFOQ. Of course, if the plaintiff cannot demonstrate that the weight standards are different, she will not prevail. In Marks v. National Communications Assoc., Inc., 72 F.Supp.2d 322 (S.D.N.Y. 1999), the female plaintiff worked as a telemarketer. During her tenure with her employer, she received numerous awards for her work performance. On several occasions, plaintiff requested to be promoted to the position of sales representative. She alleges that her supervisors refused, telling that she would get the job if she lost weight. At the time, she weighed approximately 270 pounds.

At some point, plaintiff communicated to her co-workers about the alleged discrimination against her. During that same period, she allegedly heard that another female employee had been selected because she was “thin and cute.” The employer later suspended plaintiff for job performance issues. She refused to accept the suspension, and demanded to be fired. The employer obliged her request, and she sued, claiming that it applied more stringent weight and attractiveness standards to women than men.

In granting summary judgment for the employer, the district court explained that plaintiff’s theory turned on her ability to show that the company refused to hire overweight women as sales representatives but had no such restriction for men. In this regard, the president of the company submitted an affidavit stating that he did not recall any overweight salesmen. Plaintiff, however, pointed to her own deposition in which she testified that she saw overweight salesmen walking around, but never overweight saleswomen. In fact, she testified that “all of the saleswomen were thin, cute and adorable.” Id. at 333. The court found that because plaintiff had not identified any particular overweight salesman, her nonspecific testimony was insufficient to overcome summary judgment. Id. at 333-34.

In a footnote, the Marks court observed, “Obviously this does not mean that male and female employees must be subjected to the exact same weight requirements. It would be absurd to require men and women to meet the same weight standards since men, on average, weigh more than women of the same height.” Id. at 330 n.8.

B. Lack of Attractiveness as Gender Discrimination

Employment decisions based on lack of attractiveness also may implicate Title VII. In Yanowitz v. L’Oreal USA, Inc., 116 P. 3d 1123 (Cal. 2005), the female plaintiff was a regional sales manager, responsible for managing the sales team for stores that sold L’Oreal’s fragrances. During a tour of a Macy’s department store, plaintiff’s general manager instructed her to fire a dark-skinned female sales associate because he did not find her sufficiently attractive. The general manager expressed a preference for “fair-skinned blondes” and directed plaintiff to “get me somebody hot.” Id. at 1127. On a return trip to the store, the manager discovered that the sales associate had not been terminated. After expressing his displeasure, he pointed to “a young attractive blonde girl, very sexy” and told plaintiff “damn it, get me one that looks like that.” Id. at 1128.

Plaintiff declined to carry out the order and claimed that she was subject to retaliation as a result. She sued L’Oreal under the California Fair Housing and Employment Act (FEHA) which, among other things, makes it unlawful for an employer “to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under the part . . .” Id. at 1130. The California Supreme Court held that the trial court erred in granting summary judgment for L’Oreal.

The Yanowitz court first observed that to prevail on a retaliation claim, the challenged conduct need not ultimately be found to violate the law as long as the employee opposing it reasonably and in good faith believed it to be discriminatory. Id. at 1131. In this regard, plaintiff testified that she supervised both male and female associates for a number of years but never was asked to fire a male sales associate because he was unattractive. From this evidence, the court held that a jury could find that plaintiff reasonably believed that her supervisor’s directive to fire a female associate was discriminatory.

The Yanowitz court declined to comment on the propriety of a gender-neutral policy that an employee be physically attractive. Instead, the court noted that L’Oreal did not establish that it had an attractiveness policy or that it was applied routinely to both male and female sales associates. Id. at 1132. The court likened the conduct to an appearance standard that imposes more stringent requirements on one of the sexes, where the heightened standard cannot be justified as a BFOQ. Id. at 1131.

Interestingly, the facts in Yanowitz are similar to those in Marks in which the female plaintiff was denied a promotion based on her weight. Like the Yanowitz plaintiff who testified that unattractive men were not terminated, the Marks plaintiff testified that overweight men were promoted. However, while the Marks court held the plaintiff to the burden of identifying an overweight male salesperson, which she failed to meet, the Yanowitz court did not require plaintiff to identify an unattractive male salesperson. Yanowitz can be distinguished, however, because it dealt with the lower standard in retaliation cases of a reasonable belief of an unlawful employment practice rather than a practice which is unlawful in fact.

C. Dress Code

1. Dress Code as Gender Discrimination

As with weight restrictions, employers may adopt dress codes (even unwritten ones) that impose different standards for men and women as long as they do not impose an unequal burden on one of the sexes, have some justification in social norms and are reasonably related to the employer’s business needs. For example, shorter hair length requirements for men than women generally do not violate Title VII. See, e.g., Harper v. Blockbuster Entertainment Corp., 139 F.3d 1385 (11th Cir. 1998); Tavora v. New York Mercantile Exchange, 101 F.3d 907 (2d Cir. 1996); Fountain v. Safeway Stores, Inc., 555 F.2d 753 (9th Cir. 1977); Knott v. Missouri R.R. Co., 527 F.2d 1249 (8th Cir. 1975); Willingham v. Macon Telegraph Publishing Co., 507 F.2d 1084 (5th Cir. 1975); Batson v. Powell, 21 F. Supp. 2d 56 (D.D.C. 1998); Rivera v. Trump Plaza Hotel & Casino, 702 A.2d 1359 (N.J. Super. Ct. App. Div. 1997).

Similarly, appearance policies prohibiting only men from wearing earrings typically do not violate Title VII. See, e.g., Kleinsorge v. Eyeland Corp., 81 Fair Emp. Prac. 1601 (E.D.Pa. 2000); Capaldo v. Pan Am. Fed. Credit Union, 43 Fair Emp. Prac. ¶ 37016 (E.D.N.Y. 1987); Pecenka v. Fareway Stores, Inc., 672 N.W.2d 800 (Iowa 2003).

On the other hand, requiring only one gender to wear a uniform will run afoul of Title VII. In Carroll v. Talman Fed. Sav. & Loan, 604 F.2d 1028 (7th Cir. 1979), cert. denied 445 U.S. (1980), a bank required its female tellers, officers and managerial staff to wear a uniform while male employees in the same positions were required only to wear customary business attire. The purpose of the uniform requirement, according to the bank, was to reduce fashion competition among women. Id. at 1031. Since men do not engage in such competition, the bank reasoned, they do not need a uniform requirement. Id. Finding that the one-sided requirement violated Title VII, the Seventh Circuit stated: “While there is nothing offensive about uniforms per se, when some employees are uniformed and others are not there is a natural tendency to assume that the uniformed women have lesser professional status than their colleagues attired in normal business clothes.” Id. at 1033.

The court reached a similar conclusion in O’Donnell v. Burlington Coat Factory Warehouse, Inc., 656 F.Supp. 263 (S.D.Ohio 1987). A retail store required female sales clerks to wear a smock while their male counterparts were permitted to wear a shirt and tie. The court found that “the blatant effect of such a rule is to perpetuate sexual stereotypes.” Id. at 266. The court went on to distinguish the “hair length” standard cases, noting that “the smock requirement finds no justification in accepted social norms.” Id.

When it comes to physical appearance, the line between an “accepted social norm” and an impermissible “sexual stereotype” is neither bright nor stationary. The landmark Supreme Court decision on sexual stereotyping is Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). There, a female candidate for partner in an accounting firm was described by her supervisors as “macho.” Id. at 235. Comments evaluating her candidacy stated that she “overcompensated for being a woman,” and she was advised to go to “charm school.” Id. She also was counseled to “walk more femininely, talk more femininely, dress more femininely, wear makeup, have her hair styled and wear jewelry” to improve her chances for partnership. Id. The district court found that these comments amounted to gender stereotyping that led to her unlawfully being denied partnership. The Supreme Court affirmed, holding that a person who suffers discrimination because of her failure to conform to a feminine stereotype may pursue a gender discrimination claim under Title VII. 250-51.

A more difficult fact pattern was presented in Jespersen v. Harrah’s Operating Co., Inc., 392 F.3d 1076 (9th Cir. 2005). Plaintiff worked as a bartender at the sports bar in Harrah’s casino. By all accounts, she was an outstanding employee during her 20 year tenure. Harrah’s generally encouraged the female servers to wear makeup, but did not require it. Plaintiff tried wearing makeup for a short period, but found it made her feel “sick, degraded, exposed, and violated.” Id. at 1077. Further, she felt like wearing makeup “forced her to be feminine” and to become “dolled up” like a sexual object.” Id.

In 2000, Harrah’s adopted a “Personal Best” program by which all beverage servers were required to be “well groomed, appealing to the eye, be firm and body toned . . .”. The policy also contained gender-specific standards. Female beverage servers were to wear stockings, colored nail polish, and wear their hair “teased, curled, or styled.” All female beverage servers also had to wear makeup. Male beverage servers could not wear makeup or colored nail polish, their hair had to be maintained short, and they had to keep their fingernails neatly trimmed.

When plaintiff refused to wear makeup, Harrah’s gave her 30 days to apply for another position that did not require her to wear makeup. She did not apply, and Harrah’s terminated her. She sued for gender discrimination under Title VII. The district court granted Harrah’s motion for summary judgment, and the Ninth Circuit affirmed. The appellate court explained that an employer may impose different appearance standards to the sexes as long as they do not create “unequal burdens” that are not otherwise justified as a BFOQ. Id. at 1080. The court went on to find that while Harrah’s grooming standard for men and women were different, the cost and time necessary to comply with them were comparable. Id. at 1081-82.

Interestingly, the dissent found this to be a “classic case of Price Waterhouse discrimination” in that plaintiff was required to conform to a female stereotype by wearing makeup. Id. at 1084. The differing viewpoints between the majority and the dissent demonstrate the difficulty in distinguishing between an accepted social norm and an impermissible sexual stereotype. This is particularly so when social norms seem to change on a weekly basis.

Another case demonstrating the tension between accepted social norms and impermissible sexual stereotypes is Hub Folding Box Co., Inc., v. Massachusetts Comm’n Against Discrimination, 2001 WL 789248 (Mass.App.Ct. July, 12, 2001). There, a female employee was fired for refusing to cover a heart-shaped tattoo on her forearm while at work. Her male supervisor reportedly told her that a “tattoo on a woman symbolized that she was either a prostitute, or on drugs, or from a broken home.” Id. at 1. When the female employee pointed out that a male co-worker also had a tattoo on his arm, the supervisor observed that the circumstances were different because the male “was a hero who had served his country.” Id. In finding that the company’s conduct violated the Massachusetts antidiscrimination statute, the court found that its decision was based on “outdated gender stereotypes.” Id. at 2.

While the Hub decision seems to make sense at first blush, it is somewhat difficult to reconcile with the cases allowing different dress codes for men and women concerning hair length, earrings and makeup. It could be argued, for example, that tattoos historically were worn mainly by men, just as long hair and earrings traditionally were worn by women. One can envision a court in the future holding that a policy prohibiting men from wearing long hair, make-up and earrings is an outdated gender stereotype. Cf. Smith v. City of Salem, Ohio, 378 F.3d 566 (6th Cir. 2004) (discussed infra.).

A dress code also may violate Title VII even if it does not impact men and women differently. In EEOC v. Sage Realty Corp., 507 F.Supp. 599 (S.D.N.Y. 1981), the court found the employer’s requirement that a female employee wear a revealing uniform at work, when it knew that doing so subjected her to sexual harassment, constituted gender discrimination under Title VII. The plaintiff was employed as a lobby attendant at a Manhattan high-rise which her employer managed. Her job functions included security, safety, maintenance and information. During the relevant time period, no male lobby attendants were employed.

The uniform in question, worn in the Spring of 1976 and called “the Bicentennial,” was shaped like a “red-white-and-blue octagon and worn like a poncho.” Id. at 604. It contained limited stitching but otherwise was open at the sides. The attendants wore blue dancer pants and sheer stockings, but they were not permitted to wear a shirt or blouse under the poncho. Although the uniform was modified a number of times, the female attendant felt it was too revealing. While wearing it, she received sexual propositions and endured lewd comments and gestures. She ultimately refused to wear the uniform and was terminated.

The court held that requiring an employee to wear a revealing and sexually provocative uniform reasonably could be expected to subject her to sexual harassment by the public:

The Court does not question an employer’s prerogative to impose reasonable grooming and dress requirements on its employees, even where different requirements are set for male and female employees, when those requirements have a negligible effect on employment opportunities and have no distinct employment disadvantages. The prerogative to impose reasonable grooming and dress requirements, however . . . does not mean that an employer has the unfettered discretion to require its employees to wear any uniform the employer chooses, including uniforms which may be characterized as revealing and sexually provocative.

Id. at 608-09.

Finally, the court rejected the argument that the uniform was a BFOQ: “While it may be a BFOQ for Sage to require female lobby attendants to wear certain uniforms . . . it is beyond dispute that the wearing of sexually revealing garments does not constitute a BFOQ. Indeed, the evidence establishes that wearing the uniform interfered with [the attendant’s] ability to perform her job.” Id. at 611.

Conversely, an employer may prohibit its employees from wearing clothes that are too provocative. In Schmitz v. ING Securities, 1999 WL 528024 (7th Cir. July 20, 1999), plaintiff wore skirts and blouses to work which, in the opinion of the male CFO, were too tight, too short and too revealing. While the company had no established dress code, the CFO repeatedly counseled plaintiff on her attire. Eventually, she was fired, in part, because of her attire. She sued under Title VII for hostile work environment. The Seventh Circuit affirmed summary judgment for the employer, observing that the work environment, rather than being hostile, was simply one in which the plaintiff was not permitted to dress in any way she chose.

While the holding in Schmitz seems like common sense, if a jurisdiction legislates against appearance-based discrimination, an employer may be unable to regulate provocatively dressed employees. That was the outcome in Atlantic Richfield Co. V. District of Columbia Commis’n on Human Rights, 414 A.2d 1095 (D.C.App. 1986), where the employer admonished a female employee because her blouses were too tight, causing buttons to pop open and show cleavage. The appellate court found that the employer’s comments amounted to appearance discrimination under the District of Columbia statute.

2. Dress Code as Religious Discrimination

Dress codes can also lead to claims of religious discrimination under Title VII, which protects “all aspects of religious observance and practice, as well as belief.” 42 U.S.C. § 2000e(j). An employer must accommodate its employees’ religious observances and practices unless doing so would constitute an undue hardship. Id.

In Swartzenruber v. Gunite Corp., 99 F.Supp.2d 976 (N.D.Ind. 2000), factory worker Sheldon Swartenruber was a self-professed member of the Church of the American Knights of the Ku Klux Klan. African-American co-workers complained to management that Swartzenruber displayed a tattoo extending from his elbow to his wrist depicting a hooded man standing in front of a burning cross. After management instructed Swartzenruber to cover the tattoo while at work, he sued for religious discrimination under Title VII.

The district court explained that to establish a prima facie case of religious discrimination, a plaintiff must show that (1) he has a sincere religious belief, observance or practice that conflicts with an employment requirement; (2) he informed his employer of the conflict; and (3) the religious practice was the basis for the adverse employment decision. Id. at 978. Once a plaintiff makes out a prima facie case, the employer must show that it reasonably accommodated the religious observance or practice unless doing so would have caused an undue hardship. Id. at 978-79.

In analyzing the prima facie case, the court did not address the sincerity of Swartzenruber’s religious beliefs. Rather, it held that he failed to satisfy the first two elements because he did not contend that the covering of his tattoo at work conflicted with his religious beliefs or that he told his employer of such a conflict. Id. at 979. Even if Swartzenruber had made out a prima facie case, however, the court held that the company reasonably accommodated his religious observance by allowing him to work with his tattoo covered. To do otherwise would have violated the company’s racial harassment policy because other employees understandably viewed the tattoo as a symbol of racism and violence. Id.

A similar result was reached in Cloutier v. Costco Wholseale Corp., 390 F.3d 126 (1st Cir. 2004). There, a cashier sued her employer, Costco, alleging that it violated Title VII when it failed to accommodate her professed religious practice of facial piercings. Costco’s dress code prohibited facial jewelry other than earrings. Plaintiff nevertheless continued wearing her eyebrow piercing, claiming that she was a member of the Church of body Modification (CBM) and that the piercing was part of her religion. CBM’s members practice piercing, tattooing, branding, cutting and body manipulation. Its mission is for its members to “grow as individuals through body modification” and to be “confident role models in learning, teaching, and displaying body modification.” Id. at 129. Plaintiff was fired for refusing to conform to Costco’s dress code and sued under Title VII.

The First Circuit Court of Appeals affirmed summary judgment for Costco. While the court expressed doubt as to whether plaintiff was engaged in a bona fide religious practice, it avoided the issue by ruling that allowing an exemption from the no-facial-jewelry policy would have created an undue hardship on Costco. An accommodation constitutes an undue hardship if it would impose more than a de minimis cost on the employer. The court found that “Costco has a legitimate interest in presenting a workforce to its customers that is, at least in Costco’s eyes, reasonably professional in appearance.” Id. at 135. The court went on to observe:

Costco is far from unique in adopting personal appearance standards to promote and protect its image. As the D.C. Circuit noted, “Perhaps no facet of business life is more important than a company’s place in public estimation . . . Good grooming regulations reflect a company’s policy in our highly competitive business environment. Reasonable requirements in furtherance of that policy are an aspect of managerial responsibility.”

Id. (citing Fagan v. National Cash Register Co., 481 F.2d 1115, 1124-25 (D.C.Cir. 1973)).

Not all courts are so employer-friendly, however. In EEOC v. Red Robin Gourmet Burgers, 2005 WL 2090677 (W.D.Wash. Aug. 29, 2005), a waiter practiced Kemetecism, a religion with roots in ancient Egypt. He affiliated himself with the Anu tribe, numbering less than 10 members. The employee obtained tattoos encircling both wrists, which allegedly represented his servitude to Ra, the Egyptian god of the sun. Written in Coptic, the tattoos translated in English stated, “My Father Ra is Lord. I am the son who exists of his Father; I am the Father who exists of his son.” Id. at 1. The employer maintained a written appearance policy which stated that body piercings and tattoos must not be visible. When the employee refused his employer’s request to cover his tattoos at work, he was terminated. He sued for religious discrimination under Title VII.

In its summary judgment motion, the employer did not challenge the second and third elements of the prima facie case, acknowledging that it was notified of the conflict in the employee’s religious beliefs and its dress code policy and that it fired him for violating the policy. The employer, however, disputed that the employee possessed a bona fide religious belief against covering his tattoos. Specifically, the employer argued that the tattoos lacked historical and textual support. The district court, however, noted that it was bound by Ninth Circuit precedent which does not allow consideration of the size and history of the religion or the centrality of the religious practice at issue. Id. at 3 n.4. The court concluded that the employee’s own expressions of sincerity and his willingness to sacrifice his job rather than cover his tattoos demonstrated a bona fide religious practice.

The court also rejected the employer’s argument that accommodating the employee by exempting him from its dress code would have caused an undue hardship because it sought to present a “family-oriented and kid-friendly image.” In so doing, the court expressly declined to follow the First Circuit’s decision in Clautier. Again, constrained by Ninth Circuit precedent, the court held that the employer had to demonstrate not a hypothetical hardship but an actual imposition on its business: “Red Robin fails to present any evidence that visible tattoos are inconsistent with [its] goals generally, or that its customers share this perception. Hypothetical hardships based on unproven assumptions typically fail to constitute undue hardship.” Id. at 5. The Red Robin court seemed to imply that since restaurant patrons themselves may have tattoos, allowing an employee to display his own tattoos may not necessarily constitute an undue hardship.

3. Dress Code as Racial Discrimination

Dress code policies may also constitute race discrimination. An African-American female employee sued American Airlines alleging that the company’s grooming policies violated Title VII. Rogers v. American Airlines, 527 F.Supp. 229 (S.D.N.Y. 1981). Among other things, the grooming policy, which was designed to project a “conservative and business-like image,” prohibited employees who dealt with the public from wearing an all-braided hairstyle. Plaintiff, who wore her hair in all-braided or “corn row” hairstyle, claimed that the policy discriminated against her as an African-American woman. She contended that this hairstyle “has been, historically, a fashion and style adopted by Black American women, reflective of the cultural, historical essence of Black women in American Society.” Id. at 232.

The court disagreed, finding that the policy applied equally to both women and men of all races. As to gender, the court rejected the contention that the policy only affected women. The court observed that men also wear their hair braids. However, even if the grooming policy imposed different standards on men and women, it would not violate Title VII. An even-handed policy that prohibits both sexes a style more often worn by one gender than the other does not constitute gender discrimination. Id. at 231. “This is because this type of regulation has at most a negligible effect on employment opportunity. It does not regulate on the basis of any immutable characteristic . . .” Id.

As to race, plaintiff did not allege that the all-braided hairstyle was worn exclusively or even predominantly by African Americans. In fact, the employer pointed out that plaintiff did not begin to wear the all-braided hairstyle to work until it had been popularized by a white actress in the film “10.” The court observed that if the policy prohibited the “Afro” style, it might violate Title VII. Id. at 232. This is because banning a natural hairstyle can be categorized as discrimination based on an immutable characteristic associated with a particular race. However, “[a]n all-braided hairstyle is an ‘easily changed characteristic,’” and, even if socioculturally associated with a particular race or nationality, is not an impermissible basis for distinctions in the application of employment practices by an employer. Id.

By contrast, an employer may get into trouble if it does not apply its dress code uniformly. In Hollins v. Atlantic Co., Inc., 188 F.3d 652 (6th Cir. 1999), plaintiff, an African-American female, worked as a machine operator for a manufacturing company. The company’s grooming policy stated, in part: “Women should have a neat and well groomed hair style. Rollers and other hair setting aids were not permitted. For safety, women could be required to wear their hair tied back.” Id. at 655.

One day, plaintiff arrived at work with a hair style called “finger waves.” Her foreman acknowledged that the hairstyle was neat, well groomed and safe but was unacceptable because it was “eye catching.” A plant manager advised plaintiff that she would have to seek approval for her hairstyles in advance and suggested that she submit photographs of the styles she might wish to wear in the future. Plaintiff complied. Some of the hairstyles were rejected, and some were accepted. However, the company was erratic as to which hairstyles plaintiff could wear.

Another day plaintiff came to work with her hair pulled back in a ponytail. Five white women on her shift wore this style on many occasions. Nevertheless, plant supervisors informed plaintiff that this style was “too drastic” and “called attention to her.” Id. at 656-57. As a result of her hairstyles, plaintiff received lower scores on her performance reviews for personal appearance and cooperativeness.

Plaintiff subsequently sued her employer for racial discrimination under Title VII. In overturning summary judgment for the employer, the Sixth Circuit held that a jury could reasonably infer that the company applied its grooming policy in a discriminatory manner. Id. at 661.

D. Behavior as Gender Discrimination

Courts have recognized that one may fail to conform to a gender stereotype not only by appearance but also through behavior, though the two are often closely related. Moreover, unlawful “behavior stereotyping” is not limited to females. In Nichols v. Azteca Restaurant Enterprises, Inc., 256 F.3d 864 (9th Cir. 2001), a restaurant waiter was mocked by his male co-workers for acting effeminately. The Ninth Circuit relied on Price Waterhouse in holding that the waiter could sue for sexual harassment because he failed to conform to a male stereotype.

An offshoot of the gender based behavior discrimination cases are those involving sexual orientation. While Title VII does not cover sexual orientation, plaintiffs have attempted, at times successfully, to cast their claims as impermissible gender stereotyping. In Rene v. MGM Grand Hotel, Inc., 305 F.3d 1061 (9th Cir. 2002) (en banc), a homosexual male sued his employer for sexual harassment. He claimed a co-worker blew him kisses, called him “sweetheart” and “doll” and touched his private areas. One contingent of the majority of the en banc Ninth Circuit found this to be male-on-male sexual harassment deemed unlawful by the Supreme Court in Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998). The other faction, however, found the conduct to be unlawful gender stereotyping under Price Waterhouse.

The court reached a different result in Bianchi v. City of Philadelphia, 183 F.Supp.2d 726 (E.D.Pa. 2002). Plaintiff there was subjected to harassment by co-workers who believed him to be gay. In grating summary judgment for the employer, the court distinguished Price Waterhouse and Nichols because those cases involved comments about gender versus sexual orientation. It found no evidence that the harassment resulted from plaintiff’s “failure to match the societal ideal of manliness.”

Other courts similarly have declined to use a gender stereotyping claim to bootstrap protection for sexual orientation under Title VII. See, e.g., Dawson v. Bumble & Bumble, 398 F.3d 211 (2d Cir. 2005); Bibby v. Coca Cola Bottling Co., 260 F.3d 257 (3d Cir. 2001); Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000); but see Rhea v. Dollar Tree Stores, Inc., 2005 WL 2600213 (W.D.Tenn. Oct. 12, 2005) (gay plaintiffs survived summary judgment on gender stereotyping theory); EEOC v. Grief Brothers Corp., 2004 WL 2202641 (W.D.N.Y. Sept. 30, 2004) (same).

Still another variation on the gender stereotyping claims are those brought by transgendered persons. Courts historically have held that transsexuals and transvestites are not covered under Title VII. See, e.g., Ulane v. Eastern Airlines, 742 F.2d 1081 (7th Cir. 1984); Sommers v. Budget Marketing, Inc., 667 F.2d 748 (8th Cir. 1982); Holloway v. Arthur Andersen & Co., 556 F.2d 659 (9th Cir. 1977).

However, the court reached a different result in Smith v. City of Salem, Ohio, 378 F.3d 566 (6th Cir. 2004). There, a transsexual fire department lieutenant sued the city alleging gender discrimination. The Sixth Circuit found that plaintiff sufficiently pled a claim of sexual stereotyping under Price Waterhouse, which, in the court’s view, overturned prior decisions denying Title VII protection to transsexuals:

After Price Waterhouse, an employer who discriminates against women because, for instance, they do not wear dresses or makeup, is engaging in sex discrimination because the discrimination would not occur but for the victim’s sex. It follows that the employers who discriminate against men because they do wear dresses and makeup, or otherwise act femininely, are also engaging in sex discrimination, because the discrimination would not occur but for the victim’s sex.

Id. at 574. The court went on to state that “a label, such as ‘transsexual,’ is not fatal to a sex discrimination claim where the victim has suffered discrimination because of his or her gender non-conformity.” Id. at 575.

The Sixth Circuit followed Smith in its subsequent decision in Barnes v. City of Cincinnati, 401 F.3d 729 (6th Cir. 2005), which involved a male-to-female transsexual police officer. More recently, Smith was followed in Mitchell v. Axcan Scandipharm, Inc., 2006 WL 456173 (W.D.Pa. 2006), a case involving a preoperative transsexual working in the private sector.

IV. Conclusion

While claims for appearance discrimination in employment are not new, employers face greater challenges than ever before when attempting to regulate their public image and corporate culture. With social norms constantly changing, what may have seemed bizarre only a few years ago may now be commonplace. At the same time, courts and legislators are increasingly willing to regulate workplace conduct. As a result, the line between legitimate business discretion and unlawful appearance discrimination is neither bright nor stationary. The only sure thing is that continuing uncertainty in the law will spawn more appearance discrimination claims in the future.

Montgomery Studios