Rehearing and Rehearing En Banc Denied October 18, 1979.
Plaintiff's amended complaint was brought under Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.) on behalf of herself and all similarly situated female employees of defendant savings and loan association. The gravamen of the complaint was that defendant imposed a dress code on its female office employees without imposing a comparable dress code on its male office employees. Plaintiff moved for certification of her class and both parties moved for summary judgment. The district court did not certify a class because it granted the defendant's motion for summary judgment on the ground that its female dress code does "not prevent employment opportunity" under Section 703(a)(2) of Title VII (note 12 infra). 448 F.Supp. 79, 83. Since this case was based on Section 703(a)(1) (note 2 infra) rather than Section 703(a)(2), the employment opportunity test used by the district court was erroneous and requires us to reverse and remand.
Defendant requires all of its female tellers, office and managerial employees to wear a uniform, whereas male employees in the same positions need wear only customary business attire. This may consist of a suit, a sport jacket and pants, or even a "leisure suit," as long as it is worn with a shirt and tie. It is of course understandable that defendant wishes its employees to wear suitable business attire. However, the question before us is whether its onesided rule requiring its 525 female employees to wear uniforms while there is no such requirement for its comparable 150 male employees
When the Equal Employment Opportunity Commission investigated plaintiff's complaint, it concluded that defendant's female dress policy constituted a "disparity in the terms and conditions of females as a class" and that possible customer preference for uniforms was "not a defense to an employment policy which makes a distinction upon grounds not permitted by Title VII" (P.App. 19). Therefore, the Commission tried to settle the matter and, when unsuccessful, issued a right-to-sue letter to plaintiff (P.App. 20), thus enabling this lawsuit to be filed.
The district court noted that the uniforms that females must wear consist of five basic items: a color-coordinated skirt or slacks and a choice of a jacket, tunic or vest (P.App. 94). As the reproduced photograph shows,
In contrast to the written uniform requirement for women employees, comparable male employees are permitted to wear business suits or business-type sport jackets and pants and ties (P.App. 21), and they are also permitted to wear leisure suits with a "suitable
The written dress code for female employees even discriminates with respect to their compensation, for defendant treats the cost of the two-piece uniform which it furnishes as income to women employees, withholding income tax on that amount from their wages (P.App. 91). In addition, the female employees are required to pay for the cleaning and maintenance of their uniforms "which must be clean and neat at all times" (P.App. 22). If a part of the uniform becomes lost or damaged, the employee must replace it at her own expense. Moreover, if an employee wishes additional parts of the uniform for variety or so that it can be cleaned more frequently than once a month, these extra pieces must also be purchased at her own expense. The written dress code for females also discriminates against them with respect to the "terms, conditions, or privileges of employment" because they are required to wear these uniforms each working day except the last Tuesday of each month, when they are normally being cleaned, and during the week between Christmas and New Year's (P.App. 21, 67, 94). As in plaintiff's case, defendant suspends employees if they do not conform to the dress code (P.App. 25).
Laffey v. Northwest Airlines, Inc., 366 F.Supp. 763 (D.D.C.1973), vacated and remanded in part and affirmed in part, 185 U.S.App.D.C. 322, 567 F.2d 429 (1976), certiorari denied, 434 U.S. 1086, 98 S.Ct. 1281, 55 L.Ed.2d 792, sets the stage for the proper disposition of this dispute. There the district court held that an airline's ruling forbidding female cabin attendants to wear eyeglasses violated Section 703(a)(1) of Title VII (366 F.Supp. 763, 790), and the airline did not appeal from that aspect of this decision. See 567 F.2d at 454, n. 170. However, the court of appeals affirmed the district court's comparable holding that inferior pay scales and weight limitations imposed upon stewardesses as compared to stewards (then known as pursers) violated Title VII. Because of this holding the court of appeals obviously would have agreed with the district court's rulings that the airline had violated the stewardesses' statutory rights by prohibiting them from wearing eyeglasses, requiring them to purchase prescribed luggage, and imposing on them a shorter height limitation than on stewards.
The dissenting opinion of Judge Pell characterizes both the male and female dress codes as resulting in ordinary business attire and concludes that the two rules are only semantically different. However, it is the compulsion to wear a uniform which by its color, cut and homogeneity is clearly identifiable with the employer that evinces the discriminatory nature of the written dress code for females.
Section 703(e) of the statute permits sex discrimination in employment where sex "is a bona fide occupational qualification reasonably necessary to the normal operation" of the particular business (42 U.S.C. § 2000e-2(e)). However, defendant does not rely on a "BFOQ" defense nor does defendant rely on any business necessity for this dress code (Br. 53-54). Instead its defense is that its dress code, if discriminatory, was job-related or reasonably necessary to the proper operation of its business (Br. 55, 57). But the courts have only permitted a stricter "business necessity doctrine" as an exception to Title VII,
As plaintiff has pointed out, defendant has several permissible alternatives to the present discriminatory dress code. Thus it could legitimately require women to wear "appropriate business attire" while at work, as in the case of the men employees,
The employment opportunity grooming cases relied upon in the dissent and by defendant do not apply to the present situation, for this is a Section 703(a)(1) case rather than one brought under Section 703(a)(2)
Fountain v. Safeway Stores, Inc., 555 F.2d 753 (9th Cir. 1977), relied upon by the district court (448 F.Supp. 79, 81), found no violation of Title VII in Safeway's requirement that male employees wear a tie, but in Fountain the court merely held that "Safeway may promulgate different personal appearance regulations for males and females * * *" (55 F.2d at 756). Similarly, in Fagan v. National Cash Register Co., 157 U.S.App.D.C. 15, 481 F.2d 1115 (1973), also relied upon by the district court, an employer's rule regulating hair length for men was held to be non-discriminatory.
We share the reluctance of the courts in Fountain and Fagan to pass on whether a particular personal appearance regulation promulgated by an employer is "reasonable." So long as they find some justification in commonly accepted social norms and are reasonably related to the employer's business needs, such regulations are not necessarily violations of Title VII even though the standards prescribed differ somewhat for men and women.
Furthermore, counsel for defendant commented at oral argument that although the defendant trusts the business judgment of its female employees,
Clearly these justifications for the rule reveal that it is based on offensive stereotypes prohibited by Title VII. As Judge Pell wrote for this Court in In re Consolidated Pretrial Proceedings in the Airlines Cases, 582 F.2d 1142 (7th Cir. 1978), the proffered justification
It should be noted that when plaintiff did not wear the uniform, the district court found that she appeared at work "dressed in appropriate business attire" (P.App. 96). Moreover, defendant's personnel manager admitted that during the times they were not required to wear uniforms, namely on the last Tuesday of every month and during Christmas week, these female employees never wore "improper business attire" (P.App. 82-83).
With all due respect to the views of a valued colleague, Judge Pell's dissenting opinion favors affirmance mainly because the sex discrimination here is not blatant. However, Section 703(a)(1) prohibits any sex discrimination with respect to compensation, terms, conditions, or privileges of employment (note 2 supra). Hence we reverse the judgment below and remand for class determination and entry of summary judgment for plaintiff, affording her whatever relief the district court considers appropriate after careful consideration of her six relief prayers (P.App. 11-13).
Reversed and remanded with directions.
PELL, Circuit Judge, dissenting.
With this decision of this court, Big Brother — or perhaps in this case, Big Sister — has encroached, in my opinion, farther
The majority opinion categorizes the clothing women are required to wear at work as uniforms but refers to that which men must wear as customary business attire. These characterizations ignore the fact of life that men's customary business attire has never really advanced beyond the status of being a uniform. True there have been variations from time to time probably mainly attributable to the desire of the clothiers to stay in business — there have been wide and narrow lapels, cuffed and cuffless trousers, different colored shirts which are ordinarily substantially covered by jackets, some splashes of color in neckties, a choice of four-in-hands or bowties, non-vested and vested suits,
On the other hand, women have had a wide range of non-uniformity, of recent vintage being the slit skirt and a few years earlier the mini which often barely qualified as a skirt. High boots have alternated with spike heels and sandals. The dresses, or blouses and skirts which are not covered by outer jackets as in the situation of men, are multi-colored and multi-patterned. Women frequently now wear slacks, an accoutrement in previous years regarded as being the exclusive province of the male.
In sum, customary business attire for the men employees of Talman seems to me to confine these employees in a uniform to the same extent as the Talman dress code does for women, in each case in reality not so much for the purpose of requiring a uniform but for the purpose of achieving a uniformity of business-like attire. One only has to observe people on the way to business jobs on the sidewalks of Chicago to be aware of the essential uniformity of male garb and the lack of that uniformity among women.
I recognize that the favorite putting-down remark that is resorted to when anyone is so bold as to delineate actual factual differences between men and women — in this case, the clothing that they customarily wear — is to accuse the person of indulging in stereotyping. If what I have written about the difference of clothing styles between the sexes be stereotyping, I will borrow an oft-quoted phrase from one of our forebears who, I believe, would be aghast at the extent of omnipresent governmental intrusion in our daily affairs, and simply say, "Make the most of it."
The plaintiff argues that the defendant's career ensemble requirement for female employees without an identical requirement for male employees violates § 703(a) of the Act which provides that is shall be an unlawful employment practice for an employer:
42 U.S.C. § 2000e-2(a).
I agree with the district court that this is a case of first impression. The question here, it seems to me, is whether an employer violates Title VII by enforcing a dress code which is applicable to both men and women but which is only on the surface restrictive as to women. After a thorough analysis of the case law relevant to this issue, the district court concluded that the defendant's dress code did not prevent employment opportunities and thus did not violate Title VII.
The majority opinion makes much of the fact that the district court focused on "employment opportunities" and not on "conditions of employment." It is true that the Congress put these two aspects into two separate statutory subparagraphs but I regard this out-of-any-abundance-of-caution separation as creating a distinction without a real difference. If what Talman required of its women employees did not limit them in a way which tended to deprive them of employment opportunities or otherwise adversely affect their status as an employee, I cannot conceive that there was discrimination as to conditions of their employment. The difference, if it exists, is purely semantical.
There really being no fundamental difference in impact, insofar as the present factual context is concerned, I regard it as unimportant that some judicial opinions have addressed the broader and all-encompassing "employment opportunities" and its accompanying prohibition against an adverse effect on status as an employee. The cases do make it clear that "regulations promulgated by employers which require male employees to conform to different grooming and dress standards than female employees is not sex discrimination within the meaning of Title VII." Fountain v. Safeway Stores, Inc., 555 F.2d 753, 755 (9th Cir. 1977). Accord Barker v. Taft Broadcasting Co., 549 F.2d 400, 401 (6th Cir. 1977); Earwood v. Continental Southeastern Lines, Inc., 539 F.2d 1349, 1351 (4th Cir. 1976); Longo v. Carlisle DeCoppet & Co., 537 F.2d 685 (2d Cir. 1976); Knott v. Missouri Pac. Ry. Co., 527 F.2d 1249, 1252 (8th Cir. 1975); Willingham v. Macon Telegraph Publishing Co., 507 F.2d 1084, 1092 (5th Cir. 1975) (en banc); Dodge v. Giant Food, Inc., 160 U.S.App.D.C. 9, 13, 488 F.2d 1333, 1337 (1973).
In many of the cases the courts have not distinguished between § 703(a)(1) and § 703(a)(2). The plaintiffs have claimed a violation of § 703(a) and the courts have merely discussed whether the conduct constitutes sex discrimination within the meaning of § 703(a). Thus in Fountain, the litigation involved a discharge of the plaintiff for failure to wear a tie during working hours. Female employees did not have to wear ties. The employer had in the past amended its dress code to some extent in response to complaints from employees, but it refused to eliminate its necktie requirement. The court, without reference to a specific subsection of § 703, held that this dress code did not constitute sex discrimination under Title VII. In response to an allegation that the company responded to male and female complaints in a discriminatory manner (apparently accommodating females more readily than males), the court stated that the company's reactions to different protests merely indicated an effort to maintain dress and grooming regulations that are not overly burdensome to its employees yet still serve to extend an image to its customers which it believed was beneficial to its business. "This power to amend regulations for one sex independent of any
In Barker v. Taft Broadcasting Co., 549 F.2d 400 (6th Cir. 1977), the plaintiff was discharged because of his hair length pursuant to a grooming code which mandated shorter hair length for men than for women. Indeed, the women's code apparently did not restrict length at all, but limited only the manner in which their hair could be styled. The court concluded that the complaint, which apparently did not specify a subsection of § 703, did not state a claim. Although the majority opinion does not mention a specific subsection of § 703, the dissent by Judge McCree says that the majority opinion was based on § 703(a)(1). The dissent, however, does not then articulate any difference between the two subsections. The majority's reasoning was that: "Employer grooming codes requiring different hair lengths for men and women bear such a negligible relation to the purposes of Title VII that we cannot conclude they were a target of the Act." Id. at 401.
In Knott v. Missouri Pacific Railroad Co., 527 F.2d 1249 (8th Cir. 1975), the plaintiffs were discharged for not complying with the employer's hair length regulation which applied only to male employees. The employer had no similar regulation restricting the hair length or hair style of female employees. The court quoted both subsections of § 703(a) but did not discuss them separately. In reviewing the little legislative history that exists, it stated that "the legislative history accompanying passage of the 1972 amendments makes clear, however, that the primary thrust of the provision was to discard outmoded sex stereotypes posing distinct employment disadvantages for one sex." Id. at 1251. The court summarized the case law as concluding that the Act "was never intended to interfere in the promulgation and enforcement of personal appearance regulations by private employers." Id. at 1251-52. In reaching its holding that "minor differences in personal appearance regulations that reflect customary modes of grooming do not constitute sex discrimination within the meaning of [§ 703(a)]," it stated that "[w]here, as here, such policies are reasonable and are imposed in an evenhanded manner on all employees, slight differences in the appearance requirements for males and females have only a negligible effect on employment opportunities." Id.
Other courts, however, without particular recognition that they were focusing on either subsection did refer to the "employment opportunity" theory. In Dodge, for example, different hair-length requirements for male and female employees were held valid under Title VII on the theory that Title VII was not "intended to invalidate grooming regulations which have no significant effect upon the employment opportunities afforded one sex in favor of the other." 160 U.S.App.D.C. at 13, 488 F.2d at 1337.
Similarly, in Willingham the Fifth Circuit, sitting en banc, upheld an employer's sex-differentiated hair length regulation and adopted the view that sex discrimination on the basis of something other than immutable characteristics or the exercise of constitutionally or statutorily protected rights does not inhibit employment opportunity in violation of Title VII. 507 F.2d at 1191-92. The Fourth Circuit followed this reasoning in Earwood to uphold a similar hair-length regulation. The majority in Earwood specifically distinguished between discrimination based on factors of personal preference (e. g. hair length or mode of dress) and discrimination based on either immutable sex characteristics or constitutionally protected activities such as marriage or child rearing. 539 F.2d at 1351.
Even if we extended the scope of Title VII beyond the exercise of fundamental rights or one's possession of certain immutable characteristics as urged in the dissent
It appears to me in the interest of accomplishing the Congressional objective rather than engaging in semantical hairsplitting as to the differences between employment opportunities and employment conditions that any issues presented under § 703(a) could be better analyzed from the point of view of whether the claimed discrimination inhibits one sex more than the other in the enjoyment of their jobs. In the present case this would require a determination of whether the on-the-surface sex-differentiated dress standards substantially burden female employees' enjoyment of their jobs more than that of male employees. In essence it appears clear to me in this case that both groups are required to conform to a status of wearing customary business attire.
Looking once more at what Talman's female dress code specifically involves, it is clear that it is not strait-jacketing but does offer substantial variety, all of which nevertheless is designed to create a businesslike rather than a fashion fair atmosphere. The variety permits slacks or one of three different skirts to be combined with either a jacket, tunic, or vest. With this tow-piece outfit the woman may wear a variety of other clothing substantially of her own choosing, including blouses, sweaters, scarves, hosiery, and shoes. She also may wear any combination of her choosing each day. The variety of apparel available to female employees within the career ensemble regulations militates against finding a substantial burden on enjoyment of their jobs vis-a-vis male employees. Accordingly, a decision affirming the district court would not render all sex-differentiated dress codes impervious to Title VII scrutiny. We do not here have a case presenting a policy which requires females to wear only a specific uniform with less individual discretion to choose accompanying items of clothing, and which gives males broad discretion in choosing their work attire. When such a case is presented it will then be appropriate to determine whether the policy would burden females in the enjoyment of their jobs sufficiently to violate Title VII.
A second factor in the present case is that the career ensembles women are required to wear are not unattractive in style, inferior in quality, ill-fitting, or uncomfortable such that they would cause embarrassment or be considered demeaning.
A further factor contributing to my conclusion that the dress code in this case did not substantially burden female employees more than male employees in the enjoyment of their jobs is that there has been no particular oblatration, if indeed any complaint at all, by female employees about the dress code, and in fact, the response has for years been positively favorable. The lack of complaint and generally positive response by female employees to the career ensemble program may well be due to the process by which the career ensemble is selected. A Career Ensemble Committee consists of six women employees chosen to provide a cross-section as to age, clothing size, job functions, and level in the corporate hierarchy. This committee selects the style, color, and supplier of the career ensemble. All female employees can make comments and suggestions to the committee which reviews them and recommends changes.
Finally, I regard the emphasis in the majority opinion on the fact that the women have to pay income tax on the first outfit provided to them without cost as nit-picking. When the men buy their business wear apparel they pay the full price without any tax deduction, the amount being far more substantial than the income tax based on the cost of the clothing received by the women. Women, of course, have to keep their ensembles in repair and cleaned. So do the men. Any replacements must be paid for by the women. Likewise the men must pay for the clothing they wear.
Opponents of the Equal Rights amendment have argued that its adoption would be followed by extreme applications bordering on the ridiculous where no meaningful discrimination exists. The result reached by the majority opinion in the application of the statute I can only regard as adding strength to that argument.