Lead Opinion
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).
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 custom-' ary 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 one-sided 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 lеtter 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 “suit
The written dress code for female employees even discriminatеs 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.,
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 sеmantically 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.
“The statute’s focus on the individual is unambiguous. It precludes treatment of individuals as simply components of a racial, religious, sexual, or national class. If height is required for a job, a tall woman may not be refused employment merely because, on the average, women are too short. Even a true generalization about the class is an insufficient reason for disqualifying an individual to whom the generalization doеs not apply. ******
“Even if the statutory language were less clear, the basic policy of the statute requires that we focus on fairness to individuals rather than fairness to classes.” (435 U.S. at 708, 709 ,98 S.Ct. at 1375-1376 .)8
.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.,
“reasonable regulations prescribing good grooming standards are not at all uncommon in the business world, indеed, taking account of basic differences in male and female physiques and common differences in customary dress of male and female employees, it is not usually thought that there is unlawful discrimination ‘because of sex.’ ” (157 U.S.App. D.C. at 17,481 F.2d at 1117, n.3 .)
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.
“dress competition among women is reduced and they do not have to be concerned about wearing something that is appropriate business attire because the career ensemble16 is acceptable. [Djress competition exists among women employees on glamour days [b]ut in the case of men employees there is little difficulty getting them to adhere to the dress and grooming code requirements. And there is little dress competition among male employees * * (Br. 5-7.)
Furthermore, counsel for defendant commented at oral argument that although the defendant trusts the business judgment of its female employees,
“the selеction of attire, of clothing on the part of women is not a matter of business judgment. It is a matter of taste, a matter of what the other women are wearing, what fashion is currently. When we get into that realm * * * problems develop. Somehow, the women who have excellent business judgment somehow follow the fashion, and the slit-skirt fashion which is currently prevalent * * *. They tend to follow those [fashions] and they don’t seem to equate that with a matter of business judgment.”
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,
“relies heavily on stereotypical assumptions, a posture which is anathema to the maturing state of Title VII аnalysis. ******
“[Assumptions steeped in cultural stereotypes * * * are inconsistent with the purposes of the Act.” (582 F.2d at 1146-1147 ).17
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 сompensation, 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.
Notes
. These ~675 employees are tellers, officers and managerial personnel.
. Section 703(a)(1) provides:
“(a) It shall be an unlawful employment practice for an employer—
“(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sеx, or national origin * * (42 U.S.C. § 2000e-2(a)(l).)
. The photograph is Exhibit I to defendant’s Memorandum on Summary Judgment and is reproduced oh page 1 of defendant’s Supplemental Appendix.
. In Los Angeles Dept. of Water & Power v. Manhart,
. As we point out infra, the employer had numerous alternative means of assuring that all its employees wear business-like apparel that would not contravene Title VII.
. We do not think the personal taste of this Court is relevant to the rights involved in this appeal, but we are quite certain that there is room for differences of opinion on the sartorial excellence of the uniforms.
. This passage was quoted with approval in Los Angeles Dept. of Water & Power v. Manhart,
. Other cases showing that even though many of the women employees like the uniforms, that is no defense to a violation of Section 703(a)(1) include Diaz v. Pan Am World Airways, Inc.,
. See, e. g., United States v. St. Louis-San Francisco Railway Co.,
. It would not be offensive, for example, if the employer required its female employees to wear business-like skirts or pants and a vest or jacket.
. If the dissent is correct that the response to the uniforms has been “positively favorable,” one would expect little effect on the employer’s dress code in making the uniforms optional.
. Section 703(a)(2) provides:
“(a) It shall be unlawful employment practice for an employer—
******
“(2) to limit, segregate, or classify his employees or applicants for employment in any*1032 way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.” (42 U.S.C. § 2000e-2(a)(2).)
. Defendant insists that sex discrimination must involve a deprivation of opportunity for employment or of the benefits of employment in order to violate Section 703(a)(1) (supra note 2). However, that Section proscribes discrimination with respect to terms and conditions of employment, as well as compensation and privileges. Other courts have recognized that personal appearance regulations that treat male and female employees differently are proscribed by Section 703(a)(1) at least where, as here, they cannot be justified as reasonably related to thе employer’s business needs. Roberts v. General Mills, Inc.,
. In Fagan, the hair-length rule applied only to service representatives, whose jobs took them to the premises of customers during business hours. Although the plaintiff argued primarily that the regulation unconstitutionally invaded his privacy interests, he also suggested that the regulation constituted sex discrimination. However, apart from the fact that the regulation reflected social norms and was reasonable, there were no women service representatives in comparison to whom the plaintiff could even arguably have been treated disadvantageously.
. The other two cases on which the district court relied, Jarrell v. Eastern Air Lines,
. The defendant refers to the clothing at issue here as a “career ensemble” rather than a uniform, but that euphemism does not alter our analysis. Days on which female employees are exempted from the requirement of wearing the uniform are referred to by the defendant as “glamour days.”
. Contrary to the implication in the dissent, our previous discussion of other cases involving appearance regulations clearly shows that we do not view the recognition of different dress norms for males and females to be offensive or illegal stereotyping. What is offensive is the compulsion to wear employer-identified uniforms and the assumption on which the employer openly admits that rule is based: that women cannot be expected to exercise good judgment in choosing business apparel, whereas men can.
Dissenting Opinion
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 arе 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 Taiman seems to me to confine these employees in a uniform to the same extent as the Taiman 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:
*1035 (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or
(2) to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.
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 mep 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 Taiman 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 seman-tical.
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 employeе. 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.,
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 refusеd 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.,
In Knott v. Missouri Pacific Railroad Co.,
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.”
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.
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 еnjoyment 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 аccompanying 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 cоst of the clothing received by the women. Womdh, 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.
. Men are so unfortunately locked in to these narrow style changes that now they frequently are unable to purchase a tropical weight suit without a restrictive vest which is a ludicrous third piece in a summer which marks perhaps the end of a synonymity between air conditioning and coolness.
. The cases to which I have referred all involve discrimination complaints by male employees. I do not conceive that either the plaintiff or the majority opinion takes the position that there should be a difference of standard dependent upon the sex of the complainant.
. The dress code in the present case does not restrict employment possibilities for women. No jobs or promotions are barred to women because of it. Moreover, the plaintiff does not claim that the dress code is a mere pretext intended to limit employment for women.
. See the discussion hereinafter on how the employees themselves select the style of the ensembles.