Before imposing grooming, dress or appearance standards on employees which differentiate between men and women, carefully assess whether the standards are job related, appropriate and reasonable, and equal in burden.
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Discrimination Law Update Hotel Chain Guilty of Sex Discrimination
For Firing Homely Clerk
By Christopher W. Olmsted
Are ugly people protected by law? They might be, if an employment decision is made based on sex stereotypes. While reasonable grooming and dress standards may be appropriate, standards that are dependent on stereotypical views of sexual attraction, or unduly burden one gender more than the other, may violate state and federal anti-discrimination laws. In an Eighth Circuit federal case titled Lewis v. Heartland Inns of America, the court examined this issue.
Yes But She Has A Nice Personality
Heartland Inns is a hotel chain with locations primarily in Iowa. The company hired Brenna Lewis to work as a part time night shift auditor and occasionally at the front desk of a hotel. She received favorable performance ratings and pay increases from her manager.
Her manager received permission from the hotel chain’s director of operations to promote her to a full time auditor position. Ms. Lewis worked in this new position and at the front desk of a hotel until on one occasion the director of operations met Ms. Lewis in person.
The director of operations thought Ms. Lewis was not attractive enough to work at the front desk. She told Lewis’ manager that she was not sure Lewis was a "good fit" for the front desk. Apparently, Ms. Lewis was self-described as having a “slightly more masculine” appearance. The manager thought she had “an Ellen DeGeneres kind of look.” Ms. Lewis preferred to wear loose fitting clothing, including men's button down shirts and slacks. She avoided makeup and wore her hair short. Ms. Lewis had been mistaken for a male and referred to as "tomboyish.”
Despite a history of good performance, the director of operations did not want her at the front desk. She claimed Heartland “took two steps back” when Lewis replaced another female employee who had been described as dressing in a more stereotypical feminine manner. According to the director, Lewis lacked the “Midwestern girl look.” The director was heard to boast about the appearance of women staff members and had indicated that Heartland staff should be “pretty,” a quality she considered especially important for women working at the front desk.
The company soon terminated Ms. Lewis. In the termination letter, it did not mention her appearance. Instead, the company claimed that she had been resistant to new hotel management policies.
Is “Pretty” In The Job Description?
Ms. Lewis sued the hotel chain, alleging sex discrimination under Title VII of the Civil Rights Act of 1964, and also under state law. The trial court granted a summary judgment motion in favor of the hotel, but Ms. Lewis appealed.
Following prior federal court decisions, including Supreme Court cases, the appellate court reiterated that sex stereotyping can violate Title VII when it influences personnel decisions.
The court cited earlier cases where an attendant was terminated for refusing to wear a sexually provocative uniform, where only women employees were compelled to wear uniforms, and where only female flight attendants were required to wear contact lenses instead of glasses. Reference was also made to a year 2000 Ninth Circuit case titled Frank v. United Airlines, Inc., where an airline policy requiring female flight attendants to be comparatively thinner than male attendants was found to be discriminatory.
Here, the court found evidence that the director made a personnel decision based on a sex stereotype regarding women. The front desk job description in Heartland's personnel manual did not mention appearance. It stated only that a guest service representative “creates a warm, inviting atmosphere” and performs tasks such as relaying information and receiving reservations. Initially, Ms. Lewis was approved for a promotion, but that changed after the director met her in person. When she instructed the manager to move her back to a night shift, she did so in the context of comments regarding Ms. Lewis’ tomboyish appearance. Further, there was evidence that the reasons provided for termination were false.
Lawsuit Takes An Ugly Turn For Hotel
The appellate court determined that Ms. Lewis had enough evidence of sex discrimination to go to trial. The case was returned to the trial court for further proceedings.
Presumably it was important in this case that the company had no basis for a policy requiring female or male attractiveness. Further, the company lacked specific grooming and dress standards, and had no basis for expecting women to dress in one way without a comparable policy for men.
The court wrote: “An employer who discriminates against women because they do not wear dresses or makeup, is engaging in sex discrimination because the discrimination would not occur but for the victim's sex.” Quoting the Supreme Court, the appellate court noted that “we are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group.”
Appropriate Dress, Grooming, and Appearance Standards
Reasonable grooming standards are permissible, at least in California and in the federal Ninth Circuit (as well as in many other federal circuits). This is so even in some cases where the employer establishes different dress and grooming standards for men and women employees, if the standards that appropriately differentiate between the genders are not facially discriminatory.
For example, in a Ninth Circuit case titled Jespersen v. Harrah’s Operating Co, Inc., the court approved of a grooming policy that required its bartenders to wear the same uniform but differentiated between male and female employees regarding hair, hands and face. Men were not permitted to wear makeup and had to wear their hair short; women were required to wear eye and face makeup. The policy was acceptable in part because the makeup requirement did not impose an “undue burden” on women. It did not appear to impose more time and cost on women to comply. By contrast, noted the court, sexually provocative dress or grooming standards tend to stereotype women as sex objects and could violate Title VII.
On the other hand, in the Frank v. United Airlines case, the airline’s policy imposing weight restrictions on female flight attendants, but not on male employees who performed the same or similar functions, violated Title VII. The rule imposed an “undue burden” on the female flight attendants compared to the male employees.
Beware Of The Pants Law
Incidentally, California employers should not forget a special quirk in state law known as the pants law. According to California Government code § 12947.5, an employer may not to refuse to permit employees to wear pants on account of the sex of the employee. (Exception: where the job requires employees to wear a uniform or costume, such as a waitress.)
Conclusion
Before imposing grooming, dress or appearance standards on employees which differentiate between men and women, carefully assess whether the standards are job related, appropriate and reasonable, and equal in burden. Seek legal advice to determine whether such a standard may violate federal law and the state law in your local jurisdiction.
Related Articles:
Pregnancy Discrimination Update: Trial Court Erred By Barring Important Employer Defense To Discrimination.
Sexual Harassment Update: U.S. Supreme Court Protects Investigation Participant From Retaliation.
More Legal Update articles.
Download entire February 2010 Legal Update in PDF format.
This article is intended as a brief overview of the law and are not intended to substitute as legal advice. Any questions or concerns regarding any statute or case law should be addressed to a licensed attorney. Copyright © 2010 by Barker Olmsted & Barnier, APLC. San Diego, California. All rights reserved.
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