Carroll v. Talman Federal Savings & Loan Ass'n

CUMMINGS, Circuit Judge.

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 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 employees1 is forbidden by Section 703(a)(1) of Title VII of the Civil Rights Act of 1964.2 By this rule defendant discriminated against plaintiff with respect to her “compensation, terms, conditions, or privileges of employment" because of her sex although such conduct is proscribed by the literal terms of that Section.

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,3 there is no question that the various combinations depict uniforms.

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*1030able shirt and tie” (P.App. 36). Until 1968 they too were required to wear uniforms (P.App. 32).

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), cer-tiorari 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 inferi- or 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.4

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.5 The dissent relies on the fact that the female uniforms are not “unattractive in style, inferior in quality, ill-fitting, or uncomfortable such that they would cause embarrassment or be considered demeaning,” but that is no answer to the discrimination involved.6 Finally, the dissent relies on the fact that the female dress code “did not substantially burden the female employees more than male employees in the enjoyment of their jobs” (emphasis supplied), but that is not the criterion imposed in Section 703(a)(1) of the Act, for that Section was “intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.” Sprogis v. United Air Lines, 444 F.2d 1194, 1198 (7th Cir. 1971), certiorari denied, 404 U.S. 991, 92 *1031S.Ct. 536,30 L.Ed.2d 543.7 Also, it is immaterial that some of the female employees favored the uniform dress code because, as Justice Stevens stated in Los Angeles Dept. of Water & Power v. Manhart, 435 U.S. 702, 707, 98 S.Ct. 1370, 55 L.Ed.2d 657, Section 703(a)(1) makes it unlawful to discriminate, against any individual because of such individual’s sex. He added:

“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 does 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,9 and defendant has not attempted to justify the female dress code on the ground of business necessity (Br. 46-57).

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,10 or it could make the uniform optional to women employees.11 Otherwise it could require comparable male employees to wear some sort of uniform while at work, as they did between 1958 and 1969, and as numerous other banks and savings institutions do. Title VII does not require that uniforms be abolished but that defendant’s similarly situated employees be treated in an equal manner.

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)12 which alone requires deprivation *1032of employment opportunities in order for a classification based on sex or another prohibited basis to be held illegal.13 Nashville Gas Co. v. Satty, 434 U.S. 136, 144-145, 98 S.Ct. 347, 54 L.Ed.2d 356.

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.14 The Fagan court commented

“reasonable regulations prescribing good grooming standards are not at all uncommon in the business world, indeed, 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.15 However, the situation is different where, as here, two sets of employees performing the same functions are subjected on the basis of sex to two entirely separate dress codes — one including a variety of normal business attire and the other requiring a clearly identifiable uniform. This different treatment in the conditions of employment for female employees cannot be justified by business necessity, since, as already described, the employer had a variety of non-discriminatory alternative means of assuring good grooming. Moreover, the disparate treat*1033ment is demeaning to women. While there is nothing offensive about uniforms per se, when some employees are uniformed and others not there is a natural tendency to assume that the uniformed women have a lesser professional status than their male colleagues attired in normal business clothes. The employer’s stated justification for the policy is that

“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 selection 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, 582 F.2d 1142 (7th Cir. 1978), the proffered justification

“relies heavily on stereotypical assumptions, a posture which is anathema to the maturing state of Title VII analysis. ******
“[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 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.

. 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, sex, 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, 435 U.S. 702, 708, 98 S.Ct. 1370, 55 L.Ed.2d 657, a similar height limitation was condemned under Section 703(a)(1).

. 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, 435 U.S. 702, 707, n. 13, 98 S.Ct. 1370, 55 L.Ed.2d 657.

. 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., 442 F.2d 385, 389 (5th Cir. 1971); Sprogis v. United Air Lines, Inc., 444 F.2d 1194, 1199 (7th Cir. 1970), certiorari denied, 404 U.S. 991, 92 S.Ct. 536, 30 L.Ed.2d 543; Doe v. Osteopathic Hospital of Wichita Inc., 333 F.Supp. 1357, 1362 (D.Kan.1971). The reference to “enjoyment” in Sprogis relied upon in the dissent was to job enjoyment rather than any satisfaction that defendant’s employees might derive from their clothing. See 444 F.2d 1194, 1198.

. See, e. g., United States v. St. Louis-San Francisco Railway Co., 464 F.2d 301, 308 (8th Cir. 1972), certiorari denied, 409 U.S. 1107, 93 S.Ct. 900, 34 L.Ed.2d 687; Sagers v. Yellow Freight System, Inc., 529 F.2d 721 (5th Cir. 1971); United States v. Bethlehem Steel Corp., 446 F.2d 652, 662 (2d Cir. 1971).

. 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 *1032way 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 the employer’s business needs. Roberts v. General Mills, Inc., 337 F.Supp. 1055 (N.D.Ohio 1971); Donohue v. Shoe Corporation of America, 337 F.Supp. 1357 (C.D.Cal.1972); Aros v. McDonnell Douglas Corporation, 348 F.Supp. 661 (C.D.Cal.1972); Rafford v. Randle Eastern Ambulance Service, Inc., 348 F.Supp. 316 (S.D.Fla.1972).

. 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, 430 F.Supp. 884 (E.D.Va.1977), and In re National Airlines, Inc., 434 F.Supp. 269 (S.D.Fla.1977), upheld weight limitations imposed on flight attendants as part of the employer’s personal appearance regulations. In both cases, however, the courts undertook a careful analysis of the weight limitation rules and how they were applied to both male and female employees. Each court concluded that the rules at issue, unlike those in Laffey v. Northwest Airlines, Inc., supra, did not discriminate on the basis of sex. The two cases are thus consistent both with Laffey and with our conclusion in this case, since a factual determination of whether the rule was discriminatory in application would have been unnecessary if employees’ rights under Title VII were as limited as defendant contends.

. 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.