BUTZNER, Circuit Judge:
Continental Southeastern Lines, Inc., appeals from a judgment of the district court awarding back pay and ordering Continental to cease enforcing its hair length regulation for male bus drivers. We reverse because we are persuaded that sex-differentiated grooming standards do not, without more, constitute discrimination under Title VII of the Civil Rights Act of 1964.
Continental employs men and women in several different job categories. At the time of this suit, however, only men were bus drivers.
Earwood, a bus driver, was taken off several runs in October 1972 until his hair was cut. He was again held off of his run in December because of his hair style. He then filed this suit.
To establish a claim of sex discrimination under 42 U.S.C. § 2000e-2, a two-step analysis must be undertaken.
Earwood does not contend that Continental uses its hair length regulation as a pretext for limiting employment of one sex. Since all of its drivers are male, the rule obviously has no such effect. Instead, it is argued, the regulation deprives some men of employment because it enforces a sex stereotype. Such discrimination is based on a combination of sex and a facially neutral factor. Under this theory, regulations limiting employment of women with small children or who are married, but not restricting men similarly situated, have been struck down. See Phillips v. Martin Marietta Corp., 400 U.S. 542, 91 S.Ct. 496, 27 L.Ed.2d 613 (1970); Sprogis v. United Airlines, Inc., 444 F.2d 1194 (7th Cir. 1971).
These cases, however, involve factors significantly different from hair length. The objective of Title VII is to equalize employment opportunities. Griggs v. Duke Power Co., 401 U.S. 424, 429-30, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971). Consequently, discrimination based on either immutable sex characteristics or constitutionally protected activities such as marriage or child rearing violate the Act because they present obstacles to employment of one sex that cannot be overcome. On the other hand, discrimination based on factors of personal preference does not necessarily restrict employment opportunities and thus is not forbidden. See Willingham v. Macon Telegraph Publishing Co., 507 F.2d 1084, 1091 (5th Cir. 1975).
Employing this analysis, we hold that a sex-differentiated hair length regulation that is not utilized as a pretext to exclude either sex from employment does not constitute an unlawful employment practice as defined by Title VII.
Four courts of appeals have concluded that male hair length regulations alone do not violate Title VII.
Accordingly, the judgment of the district court is reversed.
WINTER, Circuit Judge (dissenting):
While I agree with the majority that the district court's judgment cannot be affirmed,
Assuming that Continental's male bus drivers must have short hair and that female bus drivers may have long hair, the majority says, in effect, that the Act was not violated so long as the hair length regulation was not adopted as a pretext to exclude either sex from employment. This result is reached on the theory that Title VII proscribes discrimination based only on immutable sex characteristics or constitutionally protected activities. Discrimination based on factors of personal preference, of which hair length is treated as one, in the view of the majority does not necessarily restrict employment and is not proscribed.
While I concede that the view of the majority has a measure of support in the decisions of other circuits, it is not a view to which I subscribe.
Grooming standards are clearly "terms, conditions, or privileges of employment." Thus, an employer may not vary grooming regulations because of an individual's sex. In the absence of any authoritative legislative history indicating a contrary conclusion, I would inquire no further. I reject the notion that the regulation is valid because it is based on a combination of sex and a facially neutral factor, i. e., length of hair. To me, it is manifest that the length of hair is significant only with respect to men and that therefore the regulation discriminates on the basis of sex. The fact that all males do not prefer to wear their hair long is an irrelevancy under the statute.
The vice in the majority's approach is that it imports constitutional notions of immutability and fundamentality into the process of statutory interpretation. I can find no warrant for concluding that in enacting Title VII, Congress intended to proscribe only sex discrimination which burdens persons who desire to exercise "fundamental rights" or who possess certain "immutable characteristics."
But I do not think that the case is ripe for final adjudication. Plaintiff was discharged for failure to comply with his employer's hair grooming regulation applicable to bus drivers, and at the time he was discharged all bus drivers were male. As the majority notes, no claim is advanced that driver positions were not open to women. Indeed, women had held driver positions in the past, and one woman was being trained for a driver position at the time of trial.
The record is far from clear, however, whether Continental would treat male and female bus drivers differently with respect to the length of their hair. The district court made no findings in this regard. Briefly stated, the record shows that, according to the testimony of the transportation director and an intra-company memorandum which he wrote, plaintiff might have complied with the regulation by securing his hair up under his hat. The transportation director testified that women drivers would be permitted to satisfy the grooming regulation by wearing their hair in an "upsweep" or "bun," so that it would not fall over their ears or collar. On the other hand, the letter in which plaintiff was informed that his hair length was unacceptable told him that he "needed a haircut" and advised him that his hair "must be cut in such a manner to be in compliance with Company regulations . . ." (emphasis added). The regulation itself prescribes a "trim" haircut — a word suggesting shortness.
Thus, the record is susceptible to contrary inferences on the question of whether plaintiff could have satisfied Continental's regulations other than by "cutting" his hair. I would therefore remand the case to the district court, to make findings both as to what plaintiff would have been required to do to avoid being discharged and what a female bus driver would have been required to do in like circumstances. If it is found that plaintiff need only to have secured his hair but not to cut it, defendant should be given judgment. If it is found that plaintiff was required to cut his hair but a female bus driver would not have been required to cut her hair, the original judgment should be reinstated.
I call attention also to the fact that, in this circuit, the length of one's hair in many circumstances is a constitutionally protected right. Massie v. Henry, 455 F.2d 779 (4 Cir. 1972). A government employer can abridge it only for overriding governmental reasons. Kelley v. Johnson, 425 U.S. 238, 96 S.Ct. 1440, 47 L.Ed.2d 708 (1976).