DANAHER, Senior Circuit Judge:
This appellant in the district court had alleged that he was the victim of unlawful sex discrimination within the purview of 42 U.S.C. § 2000e-2(a). After a hearing, the district court on March 30, 1971, dismissed
The appellant had submitted on affidavit attached to his complaint: That I wear my hair long, that is below the ears and below the collar in the back and styled in the vogue and fashion of the times in projection of my image of self and consistent with my consciousness of my peer group.
The appellant was quite aware that, many months before, his employer had issued grooming regulations which, as to employees in its Technical Service Department, applied to haircuts, sideburns, mustaches, beards, suits, shirts, ties and shoes. The section dealing with "Haircuts" provided:
The appellant's affidavit was countered, in support of the appellee's motion to dismiss, by the affidavit of one Richard Paugh, Manager of the Technical Services Branch of the National Cash Register Company which as we now paraphrase it
So read the Paugh affidavit in substance.
The appellant now argues that the aid of a federal court is his right; indeed he claims he should prevail as a matter of law, and he has moved that summary judgment be entered in his favor. Moreover, he has told us on brief that there is no issue of material fact. Thus, he submits, he is entitled to judgment as he relies upon 42 U.S.C. §§ 1981, 1983, 2000e-2(a) and on the First, Ninth and Fourteenth Amendments to the Constitution of the United States.
Fagan here has insisted upon his claim of right to wear his hair in a self-determined manner, indeed he contends that his employer's action constitutes an invasion of "liberties and privacy." To support his position he has cited to us various cases where some courts have stricken as invalid school board rules prescribing unacceptable hair length for students. Some of such cases have been based upon equal protection grounds, others have viewed "long hair" proscription as a denial of due process.
On the other hand, in yet other cases, no constitutional deprivation has been perceived.
After the District Court in Karr v. Schmidt, 320 F.Supp. 728 (W.D.Tex. 1970), ruled that the local standard hair length regulation violated the due process and equal protection clauses, its judgment was stayed and Justice Black refused to vacate the stay. His memorandum, 401 U.S. 1201, 1202, 91 S.Ct. 592, 27 L.Ed.2d 797 (1971), reflected his view that the federal courts have no constitutional power to interfere with regulations promulgated by a public school system. The Fifth Circuit, en banc, 1972, 460 F.2d 609, not only reversed the District Court, but announced a per se rule directing the district courts thereafter to dismiss, forthwith, for failure to state a valid claim, a complaint which "merely alleges the constitutional invalidity of a high school hair and grooming regulation."
A variant was next considered in Landsdale v. Tyler Jr. College, 470 F.2d 659, where the Fifth Circuit again sat en banc. The Court's opinion, October 4, 1972, noted that the college was a public institution of the State of Texas, to be sure, but distinguished the Karr holding since the State's right by regulation to intrude upon a personal liberty to wear long hair "stops at the college gate." The student is not required to go to college, but until that departure, the State was bound to educate him through high school. The numerous dissenting expressions reiterate previous views.
Chief Judge Brown, concurring in the majority Landsdale opinion, not only cited Judge Tuttle's memorandum in Sherling, supra, note 7, but emphasized Judge Wisdom's dissent in Karr, 460 F.2d at 619. There, after a bow in the direction of Mr. Justice Black's position, 401 U.S. 1201, 1202, 91 S.Ct. 592, 27 L.Ed.2d 797, supra, Judge Wisdom in note 1, expressed himself as "still unwilling to ascribe a similar view to the Supreme Court as a whole."
Whatever significance any of us ever may be wont to attach to the denial of certiorari, the Supreme Court "as a whole" denied certiorari as of November 6, 1972 in Karr v. Schmidt, 409 U.S. 989, 93 S.Ct. 307, 34 L.Ed.2d 256. By that time Karr, Landsdale, Sherling, Freeman, Olff, Jackson (see cases cited in note 6, supra) had been available to
We may fairly assume this much, it would appear, the Supreme Court sees no federal question in this area. We are persuaded that the only basis upon which Fagan might predicate a claim must stem from 42 U.S.C. § 2000e-2(a)(1) and (2) to which we now turn.
Basically, throughout, the gravamen of Fagan's position has been that his employer unlawfully had discriminated against him because of his sex. Accordingly as a matter of convenience, we set out the pertinent portion of 42 U.S.C. § 2000e-2, Unlawful employment practices—Employer practices
In Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971), the Court found itself confronted with a question of first impression. It then explained at 429-430, 91 S.Ct. at 853:
The Court then at 431, 91 S.Ct. at 853 again emphasized:
True, the Court in Griggs was considering the problem of discrimination
Random sampling of the views of various courts of appeals and district courts yields the consistently stated principle, as in Martin Marietta, supra, that women are to be afforded job opportunities on an equal footing with men. For example, a weight-lifting qualification discriminated against women on the ground of sex where no such barrier was erected against male employees. Bowe v. Colgate-Palmolive Company (7 Cir.1969), 416 F.2d 711. In Weeks v. Southern Bell Telephone & Telegraph Company (5 Cir.1969), 408 F.2d 228, the plaintiff-appellant was denied a switchman's job because she was a woman. Schaeffer v. San Diego Yellow Cabs, Inc. (9 Cir.1972), 462 F.2d 1002, found discrimination against women where men could work a nine-hour day but women were limited to an eight-hour stint. La Fleur v. Cleveland Board of Education (6 Cir.1972), 465 F.2d 1184, saw invidious discrimination based on sex because of enforced maternity leave without pay. The Fifth Circuit in 1971 saw sex discrimination in Danner v. Phillips Petroleum Company, 447 F.2d 159, where women were excluded from achieving seniority rights which were awarded to males, and where, indeed, this otherwise qualified plaintiff-appellant was laid off and her job was given to a man. Even in advertising for help, exclusion of opportunity for one sex created unacceptable discrimination against the other, the court found in Hailes v. United Air Lines (5 Cir.1972), 464 F.2d 1006. Sex differentials in opportunities for earning overtime pay engaged the court in Hays v. Potlatch Forests, Inc. (8 Cir.1972), 465 F.2d 1081, where women, but not men, working overtime were to receive time and a half, thus discriminating against male employees. Sprogis v. United Air Lines, Inc. (7 Cir.1961), 444 F.2d 1194, considered the employer's no-marriage policy as applied to stewardesses where no such rule obtained against males. The majority found discrimination on the ground of sex over the critical dissent of Judge Stevens, 444 F.2d at 1202-1206, cert. denied, 404 U.S. 991, 92 S.Ct. 536, 30 L.Ed. 2d 543 (1971). Diaz v. Pan American World Airways, Inc. (5 Cir.1971), 442 F.2d 385, involved sex discrimination against a man who sought the position of flight cabin attendant where company hiring terms had restricted such opportunities to females.
It would seem inescapable that Congress was saying that job opportunities must be opened, remain open, and not be denied or terminated because of race, color, religion, sex or national origin. The language is plain, and as here considered means that men and women so far as jobs are concerned must receive equal treatment and not be the objects
The cases we have cited here in Part II clearly demonstrate how the courts have appraised the Congressional purpose to establish that persons of like qualifications are to be given employment opportunities irrespective of their sex. Certainly on our record there is no evidence of discrimination against women.
At this point we may note that in support of appellant's claim of aggrievement, his affidavit as submitted to EEOC, continued:
Appellant thus would predicate his claim of discrimination because of sex for he then refused to cut his hair and his employment was terminated.
Unlike discriminatory situations which arose in cases cited in Part II, supra, no woman here complained of the company's policy. There is no suggestion that any woman had ever sought or had been denied employment in the Technical Service Department. There were no company restrictions on the employment of both sexes.
If while engaged in company service Fagan had been required to wear a company prescribed uniform,
We have then a situation where a male was indeed employed, and with full knowledge of the company's policy, insisted upon performing his work on his own terms and upon requiring the company to accommodate to his projection of his own image.
We are quite aware that completely sincere and earnest jurists may differ from others of equal competence in their appraisal of legal issues and the conclusions deemed essential to their resolution.
For example, Rafford v. Randle Eastern Ambulance Service, Inc., 348 F.Supp. 316 (D.Fla., Miami Div., 1972), taught us that there was no discrimination based on sex where men refused to shave their beards. The employer had prescribed no policy concerning the length of hair for either men or women, and the plaintiffs had never been disciplined or discriminated against because of their hair length or because of sex. The employer, it was decided, may not apply a standard to one sex which varies from that applicable to the other. The district judge noted that beards are a special male characteristic.
The court saw the problem in terms of Section 2000e-2(e) in Donohue v. Shoe Corporation of America, 337 F.Supp. 1357, 1359 (Cal.C.D.1972). The employer there had not pleaded or established the defense of a "bona fide occupational qualification" where the plaintiff, a shoe salesman in contact with the public, was discharged for wearing long hair although women were allowed to do so. Since there was a hiring or retention standard applicable to one sex and not to the other, the employer's motion to dismiss was denied.
Aros v. McDonnell Douglas Corporation, 348 F.Supp. 661 (C.D.Cal.1972), found that three employees had been terminated because their jobs were phased out. Their casual dress, their ill-groomed hair, failure to report on time and other grounds for possible employer dissatisfaction did not deter discussion to the effect that where an employee-grooming code for males differed from that prescribed for females, a discrimination based on sex could be seen. Realizing that an employer has "every right" to adopt dress codes suitable to various job categories, the opinion read that a particular code must apply equally to everyone.
On the other hand, we see a differing point of view in Baker v. California Land Title Company, 349 F.Supp. 235, 237-238 (C.D.Cal.1972). Making some sense as to claimed discrimination "because of sex" the court referred to the meager legislative history of the "sex" amendment. Then the opinion explained the real purpose of the language. Congress sought to establish equal occupational opportunities, an equal right to available employment, equal pay for equal work and equal working conditions. It was not planned that the Act was "[to] be used to interfere in the promulgation and enforcement of the general rules of employment, deemed essential by an employer, where the direct or indirect economic effect upon the employee was nominal or non-existent." Specifically rejecting Donohue v. Shoe Corporation of America, supra, the judge said the Act was never intended to permit an employee to set in motion either federal or state employment machinery "merely because he wishes to wear his hair longer than the company rules prescribe."
A bit closer to home, we now turn to Boyce v. Safeway Stores, Inc., 351 F.Supp. 402 (D.D.C.1972). There finding that "no substantive issue is presented," Judge Gesell granted summary judgment for the defendant. There were grooming standards for female employees as well as for males. It was not unreasonable for an employer to expect differences in grooming between men and women, it was observed. The judge found no sex-based discrimination where a male food clerk was discharged because his head and facial hair failed to conform to the employer's grooming standards applicable to male employees having regular contact with the public. Obviously aware of the incongruity of the argument advanced before him, the judge took account of Diaz v. Pan American Airways, Inc., Phillips v. Martin Marietta Corporation and Griggs v. Duke Power Co. (all treated in our Part II, supra). He commented, correctly we think, that the courts in those cases struck down "outmoded and unjustifiable sex stereotypes ... [which] had distinct employment opportunity disadvantages for one sex." He noted that Safeway had
Judge Gesell found no unlawful discrimination because of sex.
Substantially similar treatment to the problem was accorded by Judge Bootle in Willingham v. Macon Telegraph Publishing Company, 352 F.Supp. 1018 (Georgia M.D.1972) (appeal pending). There, it was observed:
Judge Bootle saw the plaintiff's argument as calling for an expansion of the Act far beyond what must have been the purpose of its enactment. Tracing out what might be the end result of plaintiff's argument, the Judge commented that
We may well subscribe to Judge Bootle's view that
Sustaining the employer's motion for summary judgment dismissing the action, the Judge concluded:
We find ourselves persuaded by the reasoning and the treatment to be seen in Baker v. California Land Title Company, supra, Boyce v. Safeway Stores, Inc., supra, and Willingham v. Macon Telegraph Publishing Company, supra, and comment further in light of the record in this case where the appellant has insisted he is entitled to judgment as a matter of law.
Perhaps no facet of business life is more important than a company's place
So to say is a far cry from a conclusion that the length of one's hair is either constitutionally or statutorily protected. More remotely is it to be discerned as discrimination because of sex, when employees' hair length fails to conform to an employer's reasonable requirements, designed to further the company's legitimate interests. Clearly there are "societal as well as personal interests" so involved in providing equal opportunities for citizens, that an employer is not to be permitted under the Act to discriminate because of grounds "resulting from forces beyond [the employees'] control." Discrimination on such grounds is not to be "allowed to work a cumulative and invidious burden upon such citizens for the remainder of their lives."
But equally it seems obvious to us, that one seeking an employment opportunity as in our situation where hair length readily can be changed, may be required to conform to reasonable grooming standards designed to further the employing company's interest by which that very opportunity is provided. There is no suggestion that the company regulation is pretextual or that it has been derived otherwise than in complete good faith.
The appellant has cited to us the Commission's decision in EEOC case No. 1/AU9-545 where the Commission concluded that the employer had acted in violation of Title VII of the Act by refusing to hire, because of his sex, a male production worker with shoulder-length hair, and otherwise by refusing to hire females as production workers because of their sex, and by maintaining a height requirement which discriminates against females as a class because of their sex and Spanish surnamed American males as a class because of their national origin. It has been argued that the agency decision is entitled to "great deference" citing us to Griggs v. Duke Power Co., supra, 401 U.S. where at 433-434, 91 S.Ct. 849 the Court was discussing the Commission's interpretation of Section 703(h) of the Act. The Court had already perceived the Congressional purpose to eliminate discrimination because of race noting that what Congress sought was "plain from the language of the statute." Id. at 429, 91 S.Ct. at 853. Then the Court at 434, 91 S.Ct. at 855 explained its having accorded deference to the Commission's interpretation thus:
Here, neither the Act nor its legislative history even remotely predicated an instance of discrimination "because of sex" on the length of an employee's hair worn in contravention of the employer's good grooming regulations. Courts
We find ourselves quite unwilling, respecting the male's long hair aspect, to accept as discrimination because of sex the Commission's decision, above cited, as based upon its own expanded reading of the statute and not comporting with the repeatedly declared objectives which Congress sought to achieve.
Our respected colleague points to Section 703(a) of the Act as interpreted by Mr. Justice Marshall in Phillips v. Martin Marietta Corp., 400 U.S. 542, 544 et seq., 91 S.Ct. 496, 27 L.Ed.2d 613 (1971). Mr. Justice Marshall would adopt the guidelines and regulations as promulgated by EEOC. He alone rejected the majority ruling. He thought his colleagues had fallen into a trap. He thought an employer can require his employees, both men and women, to meet minimum performance standards and can even require parents to provide for the care of their children "so that job performance is not interfered with."
What the majority held was that persons of like qualifications are to be given employment opportunities irrespective of their sex. The majority said that the condition of the hiring policy there under consideration might be met under the circumstances outlined in 42 U.S.C. § 2000e-2(e). Thus evidence could be received to show that a bona fide occupational qualification is "reasonably necessary to the normal operation of that particular business or enterprise." (Emphasis added).
So it was that the majority remanded since the record was not adequate "for resolution of these important issues." Id. at 544, 91 S.Ct. at 498.
Here we face no such problem. Fagan has insisted that there are no issues of material fact. The Paugh affidavit was before the district judge as was Fagan's affidavit in support of his position. The district judge was satisfied that on this record the employer had established the basis for its reasonable requirement that its grooming standards be complied with. It was thereupon concluded that Fagan had failed to state a claim upon which relief can be granted and the complaint was dismissed accordingly. We think he reached a right result but the judgment will be modified that the basis may correctly appear.
WRIGHT, Circuit Judge (dissenting):
The Supreme Court has made clear that Section 703(a)
Here the District Court granted appellee's motion to dismiss without even hearing evidence as to whether its admittedly discriminatory long hair policy was a "bona fide occupational qualification" under the Act. Under the circumstances, as in Phillips, I would reverse and remand to the District Court to give appellee the opportunity to prove, if it can, that its policy comes within the exception provided in Section 703(e) of the Act.
I respectfully dissent.
And see Conard v. Goolsby, 350 F.Supp. 713 (N.D.Miss.E.D.1972), where a high school grooming regulation limiting the length and style of an adult teacher's hair, mustache, goatee, or beard, was held irrelevant to any legitimate state interest, and hence not within the Karr v. Schmidt ruling.
In the latter case, supra note 6, Judge Breitenstein had covered much the same ground as appears in Karr v. Schmidt, referring particularly, 448 F.2d at 261, to the proliferation of litigation which had resulted from an expanded use of 42 U.S.C. § 1983. Mr. Justice Brennan writing for a unanimous Court in District of Columbia v. Carter, 409 U.S. 418, 423-424, 93 S.Ct. 602, 34 L.Ed.2d 613 (1973), had pointed out that Section 1983 does not reach purely private conduct explaining further that the Fourteenth Amendment provides no shield against such conduct, however discriminatory or wrongful.
In Schattman v. Texas Employment Commission (5 Cir.1972), 459 F.2d 32, cert. denied, 409 U.S. 1107, 93 S.Ct. 901, 34 L.Ed.2d 688 (1973), the Commission had promulgated a policy terminating the employment of pregnant females some two months prior to the date of delivery. The plaintiff had not been denied "equal protection," for her employment had not been terminated either because she was a woman or because she had become pregnant, said the court, but only because her pregnancy was so far advanced. The Commission's regulation was found to be reasonable and rationally related to a permissible state purpose. Rehearing en banc was denied, Judge Wisdom dissenting.