Alan Willingham v. MacOn Telegraph Publishing Company
507 F.2d 1084
5th Cir.
1975
Check Treatment

*3 SIMPSON, Circuit Judge: Alan Willingham, plaintiff-appellant, applied for employment with defendant- appellee Macon Telegraph Publishing Co., Macon, Georgia (Macon Telegraph) as a display or copy layout artist on July 28, 1970.1 Macon Telegraph refused to Willingham. hire The suit below alleged that the sole basis for refusal to hire was objection to the length of his hair. On July 30, 1970, he filed a complaint with Equal Employment Opportunity (E.E.O.C.), Commission asserting discrim- ination Macon in its hiring policy based on and therefore in violation 703(a), 1964, Civil Rights Act of 42, U.S.C., Title 2000e-2(a). alleged investigated the The E.E.O.C. eventually advised discrimination was reasonable there Willingham Telegraph that Macon believe cause to portion of the Civ- the cited had violated 1964, was that he il 17, suit. On December to file entitled suit, in- alleging Willingham filed 1. There was evidence in for this the record basis lawsuit. For a more com- that Will- ingham applications plete Willingham had made other discussion see v. Macon Tel- for em- ployment egraph Telegraph, to Macon Pub. all for the position copy layout artist, 2, dissenting opinion Simpson, but all of 539 n. Cir- prior application Judge. were forming made cuit hiring alia that ficials of the Telegraph’s ter Macon Macon Telegraph Pub- lishing unlawfully Company were discriminated peculiarly April indignation of sex. On the dis- aware community basis over excesses granted summary during Byron court Pop trict Festi- Telegraph, val favor of defendant Macon because of the wide publicity in finding in its daily own newspaper. no unlawful discrimination. The appellee Willingham v. Telegraph Macon Publish- entitled to consider that the busi- Co., M.D.Ga.1972, ing community Macon, ness F.Supp. including Upon Willingham’s appeal advertisers, from the dis- its own was particularly panel youthful court decision circuit sour long-haired trict males at reversed, finding presence prima the time of of a Willingham’s application July case of sexual facie directing 1970. It was a fair infer- evidentiary part remand for an ence company officials hearing Willingham Macon that advertisers would share an atti- *4 Publishing Cir. not significantly 482 F.2d 535 tude different from (Simpson, Judge, of dissenting). community Circuit the general. Upon en banc consideration we vacate short, Telegraph’s Macon manage- panel remand of the original the order ment believed that the entire business affirm the and district court. community it depended served-and upon for business success-associated long hair

THE FACTS on men with the counter-culture types who gained ease is background of this extensive The factual unfavorable na- tional and and local opinion exposure court at the forth in the district time of set of the dissenting opinion festival. majority the and Therefore the newspaper’s employee code, grooming There substan- original panel. is no which required the (male employees female) dispute and parties between the who tial came into contact with important public neatly which more of be facts Willing- groomed and convenience. dressed repeat here for in accordance with ap- he the standards age customarily when years accepted was 22 in the ham community, business interpreted Macon was for work with plied before, during exclude Shortly employing (but of men July, 1970. late not women) with holidays, long “Interna- July Willingham’s hair. Fourth of Byron, longer acceptable than Pop length was held at shoulder tional Festival” grooming from hair was thus the 15 miles code Georgia, village a about violation event, upon which by hun- Macon Telegraph This attended based Macon. denial of young people, employment. of thousands dreds dissenting 3 to in footnote described Willingham’s complaint to the E.E. at 539: opinion, and his O.C. suit were federal both upon grounded Sec. 703 the Civil Macon The record shows Rights Act of Title U.S.C. disapproval long-haired community 2000e-2, provides, pertinent which recently exacerbated males had been that: part, Pop Festival” by an “International Georgia, 3, 4, July Byron, (a) It shall be an unlawful employ- Macon. community small 15 miles from practice (1) for an to— were Byron The crowds attracted fail or refuse to hire or to discharge 400,000 variously at between estimated individual, any or otherwise discrim- long- 500,000 and Bearded people. against any inate individual with re- scantily dressed youths haired compensation, terms, to his spect con- countryside. young women flooded ditions, privileges employment, or open. marijuana was drugs Use of of such because individual’s sexes, al nudity by both Complete .; limit, (2) segre- sex or frequently though not common classify or gate, any his of- managing observed. course Of deprive way would or tend to sex; (3) if there has been sexual any deprive individual discrimination, adversely purview otherwise is it within the opportunities or employee, occupational qualifica- be- fide as an the bona affect his status (BFOQ) exception and thus lawful? individual’s cause of such tion undisputed dis- We conclude sex practiced by Macon Tele- crimination is that Macon Willingham’s argument upon is based not but rather graph amongst em- Telegraph discriminates standards, thus out- upon grooming sex, in that fe- their ployees upon based proscription of 703. This Sec. side wear their hair employees can pretermits any discussion determination choose, while males must length they whether, were if sexual discrimination accept- length deemed limit theirs to involved, BFOQ it would be within the Telegraph. He asserts Macon able exception. employ- that he was denied therefore girl were he a ment because of his sex: Although inquiry our nec length compara- hair and with identical essarily upon proper focuses statuto (she) would qualifications, ble ry to be accorded construction employed. majority A have been helpful narrowly first to define original panel which heard the case precise issue to be For two considered. agreed, and remanded the cause to the reasons, question we have no here of whether or finding district court for a process not equal pro whether or due might not be law- standards need applied. tection First occupational the “bona ful under fide *5 ly, present there is no state giving action (B.F.O.Q.) statutory excep- qualification” question, rise to a constitutional with agree tion to Sec. 703.2 we Since secondly, claim deprivation no of of Telegraph’s the district court that Macon right constitutional is advanced. Cf. grooming policy does not un- dress and Schmidt, Karr v. 5 460 Cir. sex, lawfully of discriminate on the basis (en banc) Tyler 609 with Lansdale B.F.O.Q. applicability excep- the College, Junior 470 F.2d 659 opin- tion will not be considered in this (en banc) (grooming regulations within ion. public systems the school and institutions DISCRIM- THE NATURE OF SEXUAL higher learning). Similarly, of INATION not concerned with based upon alone. sex That situation obtains of em non vel unlawfulness hire, pro when an refuses to hir the respect with practices ployer mote, wages or raise of an individual of treatment ing and solely sex, as, instance, because of by Sec. sector, contemplated as private any Macon had refused to hire case, this of facts applied to the copy layout women for the of artist a three of way determined can be because of their sex. been there (1) has analysis: step Willingham relies on a more subtle e., discrimination, different i. of form discrimination, form of one courts which individu similarly situated of treatment and commentators have often character- based als; the discrimination (2) was Civil VII Title enterprise, . provided . that sexual discrimina- 703(e)(1), Title Sec. tion of 1964 would not be unlawful in a limited num- 2000e-2(e)(l). ber of circumstances: U.S.C. provision Notwithstanding any other doubt, 3. There can be little Tele- and Macon subchapter, (1) this it shall not be an un- graph dispute, distinguish- does not here that employment practice employ- lawful for an ing between males with short hair and those employees, employ er to hire and long with hair is “discrimination” in some on the basis of his sex . form as term is used in Sec. 703. There in those certain instances where persuasive evidence occupational is a fide bona word “discriminate” is to be construed broad- qualification reasonably necessary ly Cong.Rec. (1964). the Act. 110 under particular operation of that normal business age children, plus”.4 as school was ized “sex under the general, In facts this in- just volves that case as as unlawful would classification of employees on have plus the basis of sex been discrimination solely one based other ostensibly upon sex. neutral practical characteristic. The ef- fect interpreting Sec. 703 to include In analytical context, then, this type impose discrimination is to single issue in precisely this case is equal protection gloss upon the stat- particular drawn: Does a grooming reg ute, i. e. similarly situated individuals applicable ulation to men only constitute either sex cannot be discriminated plus” “sex discrimination within the against ávis vis members their own meaning Sec. construed sex unless same distinction is made Supreme Willingham Court? and nu with to those of opposite sex. merous amici curiae have advanced sev an interpretation Such may be necessary arguments supporting eral an affirma in order to counter some rather imagina- question. tive answer to the proceed tive efforts employers to circumvent to consider these arguments. Sec. 703. The primary premise Willingham’s position is plus” that “sex must read plus”

Inclusion “sex discrimi plus any 703 to intend include “sex sexual proscription within nation thus, stereotype” and since short legitimate legislative hair male, stereotypically it requiring of all underpinning. An amendment “solely” applicants violates the word Sec. 703. While have added would the Supreme bill, “sex”, explicate Court modifying defeated did breadth of its rationale in Representa Phillips, in the House of floor likely seems (1964). Pre Mr. Justice Cong.Rec. 2728 Marshall tives. might agree Willingham. least sumably, foresaw debilita special his concurrence noted that might have effect such a limitation ting hiring distinction upon based stereotyped discrimination amendment. upon the sex Court, Further, characterizations of the Supreme Phillips sexes violates Act, say went on to that such Marietta 400 U.S. v. Martin *6 BFOQ 613, discrimination could never a 496, be 542, 27 L.Ed.2d found 91 S.Ct. exception, an expressly issue in plus” open left “sex discrimination expressly that majority’s per opinion. curiam Rights em Phil- Civil Act. The violates the lips supra, v. Martin Marietta 400 Phillips accept refused to ployer in 545, 498, at U.S. 91 S.Ct. at 27 pre-school from with L.Ed.2d applications women children, at 616. but had no such age The applicants. to male defend Willingham finds further comfort argued that was not discriminat ant Sprogis Lines, Inc., v. United Air 7 Cir. women, only men and but ing between 1971, F.2d 1194. 444 Plaintiff there was women, only with re amongst and then a challenged female stewardess who an age spect pre-school to a neutral airline rule that stewardesses were not fact— decision, per aIn curiam children. short marry, allowed to but with pro- no such Supreme legis if the Court held that vision for stewards or other em- purpose like giving persons lative ployees. Sprogis court found the equal oppor qualifications rule to be an unlawful form “sex were be ef tunity irrespective of sex discrimination, plus” relying part on fected, have hir employers could not one Phillips. plus” In reference to “sex wom ing policy for men and another for forbidding employ- court noted that “[i]n plus” “sex en. Thus discrimination against ers to discriminate individuals being pre- a against plus having woman sex, of their because intended Employment See, Note, g„ Employer Ap-

4. e. Dress and Discrimination and Title Law — 1964, Rights VII of the Civil pearance of the Civil Act of Title VII 84 and Harv.L. Codes 1109, 1964, 965, (1971) (and Rev. 1171-72 Rights 46 So.Cal.L.Rev. cases cited therein). Note, Developments (1973); in the 989-90 1090 exploration of the dispa- histo- spectrum entire

to strike at the Act in ry question. We men and women re- must treatment of rate decide, if we can there find basis for stereotypes.” Sprogis sulting from sex decision, whether Lines, Inc., supra, 444 intended to v. Air United include all sexual pro- distinctions in its Treating (emphasis supplied). 1198 (based hibition solely emphasized language its broadest the sense, sex or on plus”), “sex or whether possible it is the court felt a legitimately can beyond line be drawn stereotypes violate Sec. that all sexual longer conduct is no apparently courts 703. district Several within reach of the construction, statute. at least in- agree with this personal appearance dress and sofar as discover, as have other courts ear- Aros v. are concerned. See codes us, considering problem lier before C.D.Cal.1972, Douglas Corp., McDonnell meager legislative history re- (dress grooming F.Supp. 661 348 garding the addition of “sex” Sec. constitutes sexual discrimination code 703(a) provides guidance slim for divin- differently to applied males when Congressional ing intent. The amend- females); Corp. Donohue Shoe adding passed day “sex” was one America, C.D.Cal.1972, F.Supp. 1357 Representatives ap- House of before the men, (rule requiring short hair on but Rights Title VII of the Civil Act proved women, prima facie violation of import nothing emerged from the 703); Mills, Inc., Roberts v. General Sec. limited floor discussion. Diaz v. Pan 1971, (rule F.Supp. N.D.Ohio 1971, Airways, World American allowing wear hair- female Ironically, 442 F.2d the amend- nets, wear hats— requiring but men to by Representative introduced ment was keep therefore their hair short—vio- of Virginia, op- Howard who had Smith 703). Sec. lates Act, Rights posed Civil was ac- Finally, administrative E.E.O.C. wishing sabotage cused decision, regulation, amicus brief and on proposal by his “sex” passage here, posi- fully supports Willingham’s Note, Employer amendment. Dress and decisions, its administrative tion. Appearance Codes and Title VII of the uniformly held that Commission Rights Act of Civil 46 So.Cal.L. grooming codes that distin- dress and 968; Note, Developments Rev. are within guish between sexes Law-Employment Discrimination and only justified proven to be and can of the Civil Title VII (en BFOQ. Appellant a Brief See (1971). Harv.L.Rev. And banc) regu- at 17-18. The Commission’s change argued it is that a lack of while further, (we go step assuming lations in the 1972 amendments section in this infer) sexually dis- that such codes *7 Congressional evidences the Act to asserting that re- criminatory and “[t]he position with the of the E.E. agreement individual based to hire an fusal O.C., equal with may argued it be force of the (sic) characterizations stereotyped insufficiently developed the law that application warrant the sexes” does not the amendments were con- time at the BFOQ Title 29 C.F.R. exception. any change. We find support to sidered are mindful 1604.2(a)(1)(h)(1973). We history inconclusive at the interpreta- administrative also that “[t]he conclusion, but one and draw best enforcing agency is byAct the tion of the way negative inference. by that deference,” great Griggs entitled to consideration, extensive more Without Co., 1971, 424, 434- Duke Power 401 U.S. not intend probability in all did 849, 854-855, 28 L.Ed.2d S.Ct. discrimina- of sexual proscription its 158, 165. sweeping significant have tion to AND LEGIS- SEXUAL STEREOTYPES therefore We should not implications. INTENT LATIVE coverage the Act to situa- the extend without application questionable the tions of (and often beginning The mandate. Congressional stronger statutory interpretation ending) point of We intent of Con perceive the ground, grooming such as codes or guarantee of hair, to have been the gress closely length of is related more to males fe equal job opportunity for employer’s choice of how to run his Providing opportunity such is equality males. business than to emphasis rightly where lies. This opportunity. Phillips, supra, In the Su- the Act say hiring should reach a preme to Court condemned distinc- employer or on having pre-school age device tion based chil- deny retention acquisition dren, an existing serves condition not subject to job job promotion or in a to an change. Sprogis a Lines, In v. United Air is ei individual because individual supra, the Seventh Circuit reached a language ther or female. similar result with to marital sta- Supreme Griggs regarding Court in difficulty tus. We have no with the re- equal applies cases; racial sult reached those but never- (but greater) force to sexual discrim perceive theless line must be objective “The ination: drawn grounded between distinctions plain from enactment of Title VII rights such right fundamental It language of the statute. was to have children to marry and those in- equality employment opportu terfering achieve with the manner in which an op barriers that have and remove employer nities exercises his as to past to favor an identifia way operate erated a business. Hair of white over other group ble length is not immutable and in the situa- v. Duke Power employees.” Griggs tion of vis á vis employee en- 429-430, supra, at at 401 U.S. 91 S.Ct. joys no protection. constitutional If the We expressed 28 L.Ed.2d at 163. employee objects to the grooming code thought in Diaz: is reasonable right reject looking “[I]t assume, reading from a of the statute employment, to itself, elsewhere for or alterna- Congress’ goals that one of main may tively he choose to subordinate his provide access to the equal was to preference by accepting along the code and women.” Diaz for both men job. market with the Airways, supra, American World v. Pan agree with the District of Colum Indeed, Supreme 386. 442 F.2d at bia Circuit’s treatment of this problem. point Phillips made the same Court Food, Dodge Inc., v. Giant D.C.Cir. 703(a) saying that “Section of the Civil following that court’s ear persons requires Act of 1964 Fagan lier decision v. National Cash qualifications given employ of like Co., 1973, Register U.S.App.D.C. 15, irrespective opportunities their Fagan, 481 F.2d plaintiff Phillips v. Martin Marietta sex.” employee was discharged for refusal to 497- supra, 400 U.S. at 91 S.Ct. comply company with a grooming rule at 615. 27 L.Ed.2d long hair, because of his and sued under 703(a). the Con Sec. Dismissal Juxtaposing our view of of his suit was affirmed, ground in purpose statutory with the that hair gressional length is not parties constitutionally terpretations pro advanced or statutorily tected, and reasons for hence regulation this action elucidates our as to men but not women adopting designed the more narrow construction. to further employer’s legitimate opportunity may be Equal employment business inter *8 est, is not sexual only employers Fagan when are barred discrimination. secured Co., v. National Cash discriminating against Register supra, from 481 F.2d at 1125. Enlarging prin upon the basis of immutable characteris this ciple, tics, the court origin. held in Dodge such as race and national that hair length regulations Similarly, employer an cannot have one “are classifications by . sex policy represent for which do hiring for men and another not any attempt by if the distinction is based on to prevent women employment hiring particular of a right. fundamental But pose which do not distinguishes employment that on some other distinct 1092 sex one Neither

disadvantages for sex. Willingham. for the latter Support an these to regulations Mr. concurring opinion elevated Jus- in the lies level appreciably higher occupational Phillips, supra. With Marshall tice We that Title deference, than the other. conclude appear his views his encompass was intended to never separately VII fact he con- that alone. only in- having an sexual classifications joined by other being without curred employment oppor- significant effect speaks a fair justice is indication Food, Inc., Dodge v. su- tunities.” Giant And only for himself. while there at 1337. pra, 488 F.2d interpreta- agency teaches that Griggs deference”, we, “great as did is due tion therefore, view, adopt of Columbia Circuit Fa- the District practices that distinctions qualify- equally significant note the gan, men the basis of between and women on ing explanatory “Since the statement: pro something other than immutable or support history its tected characteristics inhibit em do not construction, this af- the Commission’s opportunity in violation of Sec. ployment guidelines reason good to treat fords 703(a). all Congress sought only give Congress.” will of expressing as market, persons equal access to the added). Fagan v. National (Emphasis employer’s right to exer not to limit Register Co., supra, 481 at Cash 1125, as to how cise his informed Co., quoting Griggs v. Duke Power shop. his best to run supra, 401 at at 28 U.S. S.Ct. We are in with the accord also language at L.Ed.2d 165-166. The ground alternative mentioned both as to the statute the issue before us is the District of cases Columbia Circuit Indeed, judicial anything but clear. con- upon by Judge and relied Bootle in his required simply to reach struction Willingham: memorandum decision in principle plus”; of “sex the abstract appears, job oppor all that equal “From any- legislative history supports, available sexes. It tunities are to both construc- thing, the wisdom of narrow appear does not defendant fails we with the Finally, are in accord tion. impose grooming for female standards Sprogis reached in v. United Air result Lines, respect thus in each sex employees; dicta, and with much of its supra, equally.” is treated v. Ma Willingham particularly regarding stereotypes, Co., Telegraph supra, con Publishing intended to only but insofar as it is em- F.Supp. Dodge at 1020. v. Gi See also touching immutable brace distinctions Co., ant supra, Food F.2d at rights. protected characteristics or Fagan v. su Register National Cash 20; pra, Boyce 481 F.2d at 1124 n. Safeway Stores, D.D.C.1972, F.Supp. CONCLUSION analysis This re frame of Willingham’s complete

moves complaint say Nothing that we should ly 703(a) plus” cate from the Sec. “sex disparagement be construed as of what being gory, because both are sexes many goal— feel to be a highly laudable fact, i. screened with a neutral maximizing individual freedom elimi e., grooming general accordance nating stereotypes. sexual We hold sim ly accepted community standards that such an ply objective may not be Macon Tel appearance. dress and Since into the read Civil egraph applies this to male criterion Congressional without further action. applicants (see original female record employers prohibited Private are from Response to Plain of Defendant using different for men hiring policies Admissions), equal Request tiff’s only and women when the distinctions protection gloss applicability. has no relate to used immutable characteristics arguments persuaded by We are as legally protected rights. While of sup- amici of Macon impervious scruti course those porters unpersuaded those distinctions do not violate ny, even *9 703(a) they applied to both sexes.

Affirmed.

WISDOM, Judge, joined by Circuit

TUTTLE, GODBOLD, GOLDBERG and Judges, dissenting.

.Circuit

I reasons stated in the dissent opinion panel. Willing

original Publishing Macon Telegraph v.

ham 1973, 482 F.2d 535. MARTIN,

Hammy

Plaintiff-Appellant-Appellee,

v. rem, et WAR ADMIRAL

M/V al., Defendants. OPERATORS, INC., WATER

DEEP Third-Party al., Defendants et

Plaintiffs-Appellees-Appellants, WORKS, MACHINE

BAYOU VISTA Third-Party INC., al., et

Defendants-Appellees, & BATES OFFSHORE

READING Third-Party CO., De- DRILLING

fendant-Appellee-Appellant, Liability

Employers Assurance

Intervener-Appellee.

No. 74-1690. Appeals,

United Court States Fifth Circuit. 10, 1975.

Feb.