William BARKER, Plaintiff-Appellant, v. TAFT BROADCASTING COMPANY, Defendant-Appellee.
No. 75-2397.
United States Court of Appeals, Sixth Circuit.
Decided Feb. 11, 1977.
Argued Oct. 7, 1976.
Lawrence D. Walker, Cincinnati, Ohio, for defendant-appellee.
Before MCCREE, LIVELY and ENGEL, Circuit Judges.
ENGEL, Circuit Judge.
The issue on appeal is whether an employer‘s grooming code which mandates a shorter hair length for men than for women constitutes a prima facie violation of the Civil Rights Act of 1964,
Considered in the light most favorable to the plaintiff the complaint in this case chargеs that the employer maintained a grooming code for men and women employees which limited the manner in which the hair of the men could be cut and limited the manner in which the hair of women could be styled; and that the plaintiff was discharged for failing to comply with the code provision relating to hair length. There is no allegation that women employees who failed to comply with the code provisions relating to hаir style were not discharged. Nor is there any allegation that the employer refused to hire men who did not comply with the code, but did hire women who were not in compliance. We conclude that the complaint does not state a cause of action under Title VII for discrimination on the basis of sex within the traditional meaning of that term.
In so holding we are in agreement with the other courts of appeals that have considered this question. Dodge v. Giant Food, Inc., 160 U.S.App.D.C. 9, 488 F.2d 1333 (1973); Baker v. California Land Title Co., 507 F.2d 895 (9th Cir. 1974); Willingham v. Macon Telegraph Publishing Co., 507 F.2d 1084 (5th Cir. 1975) (en banc), rev‘g 482 F.2d 535 (5th Cir. 1973); Knott v. Missouri Pacific Railway Co., 527 F.2d 1249 (8th Cir. 1975); Longo v. Carlisle DeCoppet & Co., 537 F.2d 685 (2nd Cir. 1976); Earwood v. Continental Southeastern Lines, Inc., 539 F.2d 1349 (4th Cir. 1976). We agree with the Second Circuit in Longo v. Carlisle DeCoppet, supra, that “without necessarily adopting all of the reasoning of those opinions, we are content to abide by this unanimous result.”
The prohibition of sex discrimination must be interpreted in light of the purpose and intent of Congress in enaсting the Civil Rights Act of 1964. 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.
When Congress makes it unlawful for an employer to “discriminate . . . on the basis of . . . sex . . .,” without further explanation of its meaning, we should not readily infer that it meant something different than what the
Affirmed.
McCREE, Circuit Judge (dissenting).
I respectfully dissent. William Barker appeals from the dismissal of his complaint against Taft Broadcasting Company (Taft). The complaint alleged that Barker had been employed as an “artist-craftsman” since November 1972 by the defendant‘s Kings Island Division (Kings Island), which operated a recreation and amusement park. It further alleged that Kings Island adopted a grooming code that explicitly permitted female employees to weаr long hair but forbade male employees to do so. The complaint alleged that Kings Island discharged Barker and two other plaintiffs because their hair was longer than the code permitted even though their hair was of comparable length at time of hire, and that their discharge was an intentional violation of § 703 of the Civil Rights Act of 1964,
Instead of filing an answer, Taft filed a motion, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, to dismiss the complaint for failure to state a claim upon which relief can be granted. Defendant urged that employee hair length regulations cannot constitute sex discrimination under Title VII of the Civil Rights Act of 1964, or under
The district court concluded as a matter of law that a code that discriminates between men and women with respect to permissible hair length does not violate Title VII, and that there was no basis for federal jurisdiction over the state claim once the federal claim had been determined to be inadequate. It therefore dismissed the complaint.
On appeal, Barker contends that the dismissal of the federal claim was erroneous. The majority opinion concludes that the complaint does not state a prima facie violation of § 703(a)(1),
Because we are considering an appeal from a dismissal for failure to state a claim upon which relief can be granted, we must accept each allegаtion of the complaint as true. If upon any view the allegations would constitute a violation, the dismissal must be reversed.
On its face, the statute appears to forbid defendant‘s hair length policy. Section 703(a)(1) provides,
(a) It shall be an unlawful employment practice for an employer—
(1) 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 . . . sex . . . ;
Defendant‘s grooming code permits a female employee, but not a male employee, to wear long hair. It accordingly “discriminate[s] against [Barker] with respect to his terms [and] conditions of . . . employment, because of [his] sex.” Defendant would not have fired a woman whose hair was as long as appellant‘s. Accordingly, it “discharge[d] [Barker] because of [his] sex.” Although the employer may be able affirmatively to raise successful defenses, the complaint, taken as true, states a literal violation of the statute.
Nonetheless, every other circuit that has considered this question has concluded that employer hair regulations that prescribe different lengths or styles for men and women do not, prima facie, violate Title VII.1 Within our own circuit, the district courts have disagrеed on this issue. Compare Bujel v. Borman Food Stores, Inc., 384 F.Supp. 141 (E.D.Mich.1974), with Roberts v. General Mills, Inc., 337 F.Supp. 1055 (N.D.Ohio 1971). The Equal Employment Opportunity Commission has repeatedly ruled that hair regulations that differ for men and women are unlawful unless justified as a bona fide occupational qualification. See, e. g., E.E.O.C. Decision No. 72-1380, 4 F.E.P. Cases 846, 847 (1972). Because the E.E.O.C. is charged with the administration of Title VII, its interpretation of the statute is entitled to “great deference.” Griggs v. Duke Power Co., 401 U.S. 424, 433-34, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971). Our own court has not previously addressed this issue.
The courts that have considered this question have advanced two theories to justify their exclusion of hair regulations from the purview of Title VII.2 Some courts have suggested that Title VII forbids only discrimination on the basis of immutable characteristics. Fagan v. National Cash Register Co., 157 U.S.App.D.C. 15, 481 F.2d 1115, 1125 (1973); Baker v. Calif. Land Title Co., 507 F.2d 895, 897 (9th Cir. 1974); Bujel v. Borman Food Stores, Inc., 384 F.Supp. 141, 145 (E.D.Mich.1974).
However, in Phillips v. Martin Marietta Corp., 400 U.S. 542, 91 S.Ct. 496, 27 L.Ed.2d 613 (1971), the Court considered а policy under which women with pre-school-age children would not be hired, but men with pre-school-age children would be hired. The Court vacated summary judgment for the employer, holding that a prima facie violation of § 703(a) had been pleaded:
The Court of Appeals therefore erred in reading this section as permitting one hiring policy for women and another for men—each having pre-school-age childrеn. 400 U.S. at 544.
Because having custody of pre-school-age children is obviously not an immutable characteristic, the Fagan construction cannot be correct.
The Fourth and Fifth Circuits, however, have attempted to distinguish Phillips by reasoning that Title VII forbids discrimination either where it is based on an immutable characteristic or where it affects a fundamental right. Apparently, they would distinguish Phillips by regarding the right to have children in the home as a fundamental right, like the right to marry and the right to procreate. Eаrwood v. Continental Southeastern Lines, Inc., 539 F.2d 1349, 1351 (4th Cir. 1976); Willingham v. Macon Telegraph Publishing Co., 507 F.2d 1084, 1091 (5th Cir. 1975).
Fundamental rights analysis has developed as an aspect of the protection which the Fourteenth Amendment affords to private action against governmental invasion. See, e. g., Skinner v. Oklahoma, 316 U.S. 535, 541, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942). But there appears to be no justification for limiting an employee‘s statutory rights against a private employer to the circumstances in whiсh a person enjoys constitutional protection against government action. The Supreme Court has stated in Washington v. Davis, 426 U.S. 229, 245, 96 S.Ct. 2040, 2050, 48 L.Ed.2d 597 (1976), that employment discrimination is subject to “more probing judicial review” under Title VII than under the Fourteenth Amendment.
The Willingham and Earwood courts apparently regard some discriminations as either de minimis or impliedly permitted by the statute. But in Phillips, the Court did not look to the importance, the significance, the mutability, or the fundamental nature of the characteristic that the employer sought to regulate. The Supreme Court limited its inquiry to whether there was different treatment of male and female employees. The Earwood and Willingham courts, by attempting to exclude from the protection of the Act certain discriminations that they regard as relatively insubstantial impingements on employees, do not follow the analysis used in Phillips.
Nor does the legislative history afford support for the immutable characteristic-fundamental right limitation on § 703.4 The courts have relied upon Supreme Court dictum in Griggs v. Duke Power Co., 401 U.S. 424, 429-430, 91 S.Ct. 849, 853, 28 L.Ed.2d 758 (1971):
The objective of Cоngress . . . was to achieve equality of employment opportunities and remove barriers that have operated in the past to favor an identifiable group of white employees over other employees.
Quoted in Willingham, 507 F.2d at 1084, and Baker, 507 F.2d at 897. They have also cited House Report No. 92-238, which discussed the need for the 1972 Amendments to Title VII.5 Both authorities are said to show that Congress was concerned only to promote equal employment opportunity. Because it is entirely within the power of employees to alter their hairstyles, and because some courts have regarded such alterations as an insignificant sacrifice, employers’ hair length regulations are said not to affect the opportunity of an individual to obtain employment.
However, both of these authorities are cited out of context. In Griggs, the Court considered an employment practice that was neutral on its face, but discriminаtory in effect against black persons. The Court ruled that because Congress intended to promote employment opportunity, the fact that use of intelligence tests was neutral on its face did not avoid liability of the employer where the tests were discriminatory in effect: “Congress directed the thrust of the Act to the consequences of employment practices, not simply the motivation.” 401 U.S. at 432 (emphasis in last phrase supplied). In this case, however, the employment practice discriminates by its very terms between men and women. Because both the consequences and the explicit intent of the hair length regulations are to establish different “terms [and] conditions” of employment for men than for women, it is unnecessary to look to Congressional intent to decide whether § 703(a) has been violated.
The 1972 Amendments, with few exceptions, were procedural in nature. They did not, for the most part, affect the substantivе rights of employees against private employers. No changes in § 703(a)(1) were even considered. Therefore the general comments in the House Report should not be construed to narrow the scope of § 703.6
But even if the unambiguous words of the statute should be regarded as limited by the ambiguous language in the legislative history, a prima facie violation would still be stated by the complaint, because hair regulations do affect the opportunity of individuals to obtain employment on the same “terms [and] conditions” of employment without regard to sex. The prohibition of long hair unquestionably imposes a term or condition on employment.
Because an individual chooses to wear his hair in a particular way instead of in an alternative way, that hairstyle must have some value to him.7 If an employer requires a particular hairstyle as а condition of employment, he reduces the value of the job just as surely as if he had imposed a grooming code which was financially more onerous for employees of one sex.
For example, if a grooming code allowed male bank tellers with poor vision to wear eyeglasses, but forbade female bank tellers with poor vision to wear eyeglasses, the women would be required to spend more mоney for contact lenses. However, they would not have been deprived of the opportunity to obtain a job; therefore the approach of the majority would apparently permit that regulation without even a showing that it was a bona fide occupational qualification.
Similarly, suppose that an employer established a policy which required employees in a clerical or seсretarial pool to sign out if they expect to be away from their desks. Suppose further that the policy required men to sign out only if they expected to be away from their desks for more than thirty minutes, but women to sign out whenever they would be away from their desks for more than fifteen minutes. Surely neither the fact that the discriminatory policy was enforced “equally” against male and female employees who violated its terms, nor the fact that the policy would not deprive women of an opportunity to obtain a job, would negate the discriminatory character of the policy, nor exclude the policy from the purview of Title VII.
If an employer established a discriminatory eyeglass or signout policy similar to the ones discussed above, I have little doubt that a prima facie violation of § 703(a) would be apparent. In the cаse of hair regulation, as in the cases of sex-based eyeglass or signout policies, the condition of employment constitutes a prima facie violation of § 703(a). In all three cases, the employer must prove that its regulation establishes a bona fide occupational qualification to avoid offending the statute. See, e. g., Diaz v. Pan Am. World Airways, Inc., 442 F.2d 385 (5th Cir. 1971).
The majority opinion implies that the Supreme Court‘s recent decision in General Electric Co. v. Gilbert, 429 U.S. 125, 97 S.Ct. 401, 50 L.Ed.2d 343 (1976), supports the result it reaches in this case.
In Gilbert, the Opinion of the Court, which was limited by two concurring opinions and rejected by three dissenters, recognized that a prima facie violation of Title VII may be established in a case in which there would be no prima facie violation of the Equal Protection Clause by a public defendant. At 133. However, the Court stated that cases applying the Equal Protection Clause may bе a “useful starting point” in interpreting the language of Title VII. At 133. The Court concluded that the exclusion of pregnancies from the disability benefits considered in Gilbert was neither “discrimination based on sex” nor a “simple pretext for discriminating against women.” At 136. Finally, the Court pointed out that the plaintiffs in Gilbert “have not attempted to meet the burden of demonstrating a gender-based discriminatory effect . . . .” At 137.
In this case, however, Taft‘s discrimination is admittedly “based on sex,” but Taft urges that Congress did not intend to forbid discrimination based on sex unless other conditions are fulfilled. This argument is unsupported by legislative history and contradicted by established Title VII analysis.
I express no view about whether Taft would be able to demonstrate that its particular hair length regulation implements a bona fide occupational qualification as provided by § 703(e). I would hold only that Barker‘s complaint states a prima facie violation of § 703(a), and that to avoid liability Taft should be required either to rebut the allegations or to prove a valid defense.