The Health Care Manager Volume 33, Number 1, pp. 20–29 Copyright # 2014 Wolters Kluwer Health | Lippincott Williams & Wilkins
Dress Codes and Appearance Policies: Challenges Under Federal Legislation, Part 2 Title VII of the Civil Rights Act and Gender Michael S. Mitchell, JD, LLM; Clifford M. Koen Jr, JD; Stephen M. Darden, JD As more and more individuals express themselves with tattoos and body piercings and push the envelope on what is deemed appropriate in the workplace, employers have an increased need for creation and enforcement of reasonable dress codes and appearance policies. As with any employment policy or practice, an appearance policy must be implemented and enforced without regard to an individual’s race, color, gender, national origin, religion, disability, age, or other protected status. A policy governing dress and appearance based on the business needs of an employer that is applied fairly and consistently and does not have a disproportionate effect on any protected class will generally be upheld if challenged in court. By examining some of the more common legal challenges to dress codes and how courts have resolved the disputes, health care managers can avoid many potential problems. This article, the second part of a 3-part examination of dress codes and appearance policies, focuses on the issue of gender under the Civil Rights Act of 1964. Pertinent court cases that provide guidance for employers are addressed. Key words: dress and appearance policy, employment discrimination, gender and transgender, health care managers, legal environment
GENDER As long as the policies are not based on ‘‘immutable’’ characteristics, it is generally acceptable to require men and women to adhere to different modes of grooming and dress. Thus, requiring men to wear neckties and women to wear appropriate business attire is perfectly acceptable. Appearance and grooming policies have been upheld where they impose differing
Author Affiliations: Fisher & Phillips, LLP, New Orleans, Louisiana (Mr Mitchell); Department of Management and Marketing, East Tennessee State University, Johnson City (Mr Koen); Hunter, Smith & Davis, LLP, Johnson City, Tennessee (Mr Darden). The authors have no conflicts of interest. Correspondence: Clifford M. Koen Jr, JD, Department of Management and Marketing, East Tennessee State University, Johnson City, TN 37614-1709 ([email protected]). DOI: 10.1097/01.HCM.0000440617.09020.d3
requirements with regard only to ‘‘mutable,’’ or changeable, characteristics, such as facial hair or hair length, and are in conjunction with societal norms. Not surprisingly, many of the challenges on the basis of sex first arose in the 1970s in the context of the regulation of men’s hair length. Most courts facing a challenge to the enforcement of an appearance policy limiting length of men’s hair while allowing women to wear longer hair have found in favor of the employer. In one of the more recent challenges to such a policy implemented at Blockbuster, the court found such a policy did not violate Title VII of the Civil Rights Act or the state antidiscrimination law. Courts have upheld such policies in the face of gender discrimination claims because dress and grooming standards are not based on ‘‘immutable’’ characteristics (Harper v Blockbuster Entertainment Corp). Employers should be aware, however, that grooming policies should regulate the appearance
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Copyright © 2014 Wolters Kluwer Health | Lippincott Williams & Wilkins. Unauthorized reproduction of this article is prohibited.
Dress Codes and Appearance Policies of men and women to the same degree—even if the exact requirements differ. One court noted that policies regulating hair length for men but not women did not violate Title VII because the policy subjected men and women to strict grooming policies; that is, men were required to keep their hair trimmed above the earlobe and were permitted to wear a neatly trimmed mustache but not a beard; women were required to wear a ‘‘neat’’ hairstyle, were not permitted to wear offbeat or extreme hair styles, and were required to secure long hair so it did not fall freely (Dodge v Giant Food, Inc). Grooming In 2006, the Ninth Circuit reaffirmed employers’ rights to enforce different standards on men and women as long as the burden is equal in Jespersen v Harrah’s Operating Company, Inc. The plaintiff in that case was a bartender at a Harrah’s sports bar for approximately 20 years. During much of her tenure, Harrah’s encouraged, but did not require, female employees to wear makeup. The plaintiff refused, claiming that makeup made her physically ill, feel degraded, and interfered with her ability to perform her job. In 2000, Harrah’s implemented an ‘‘Image Transformation Program’’ for beverage department employees, that imposed specific appearance standards, including that they be well groomed, appealing to the eye, and firm and body toned. Females were required to wear makeup, stockings, colored nail polish, and wear their hair in a certain manner. Male employees had to maintain short haircuts and neatly trimmed fingernails, and they were prohibited from wearing makeup. The plaintiff refused to comply with the makeup requirement. She was given 30 days to apply for a position that did not require makeup, but she failed to do so and was terminated. The Jespersen court held that sex-based differences in appearance standards may be enforceable to the extent that they impose ‘‘equal burdens’’ on male and female employees. It noted that employers are free to implement ‘‘[g]rooming standards that appropriately differentiate between the genders’’ and that such policies are not, per se, facially discriminatory.
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In analyzing the Harrah’s policy, the Jespersen court held that the total burden for each sex must be compared, not just the fact that women were required to wear makeup and men were not. The court found that the plaintiff had failed to present evidence establishing the financial cost and the time it required of women to put on makeup to comply with the employer’s appearance standard, and even if she had, she would then have had to show that this cost outweighed the burden imposed on the male bartenders who were required to keep short haircuts and neatly trimmed fingernails. The court held that with respect to sex stereotyping, appearance standards, including makeup requirements, ‘‘may well be the subject of a Title VII claim,’’ but ultimately rejected the plaintiff’s Price Waterhouse argument that she was being discriminated against because of her failure to conform to a feminine stereotype. Dress Although there is no particular federal employment law that regulates the right to wear certain clothing, employers’ appearance policies addressing a person’s dress should be neutral. In general, it is permissible to treat male and female employees differently in accordance with social norms and reasonable business judgment, such as requiring men to wear neckties. However, if a dress code places additional burdens on one sex and not the other, the policy may be found to be discriminatory. For example, requiring female employees to wear uniforms or smocks, contact lenses, or sexually provocative clothing and not requiring the same of male employees have been found to violate federal law, specifically Title VII of the Civil Rights Act of 1964. Employers should also be mindful of religious accommodation issues discussed below. In 1 case, the female employees of a bank were required to wear certain uniforms, whereas men were simply required to wear business attire. The court found that this policy treated men and women differently with regard to compensation because the women’s uniforms were treated and taxed as compensation; the company required the women to pay for the
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cleaning and maintenance of the uniforms; and the women were required to purchase extra uniform pieces at their own expense. The court concluded that the different treatment of men and women with regard to 2 entirely separate dress codes could not be justified by business necessity, as the employer had a variety of nondiscriminatory alternative means to ensure good grooming. Notably, men had been required to wear uniforms several years prior to the time the case arose. (Carroll v Talman Federal Savings and Loan Association of Chicago). Although in 1 case a court found prohibiting women from wearing pants was lawful, the case was decided in 1979. The court likened the ‘‘no pants’’ policy to policies regarding hair length and found that prohibiting women working in certain areas of the company from wearing pantsuits was more closely related to the company’s choice as to how to run its business than the company’s obligation to provide equal employment opportunities. But employers should be aware that the interpretation of such a policy may now be different, given the current societal norms. In fact, California law prohibits such a practice, and therefore, employers should ensure that any policy treating men and women differently, outside societal norms, and without a good business justification, may violate equal employment opportunity laws (Lanigan v Bartlett and Co. Grain). Dress standards that subject an employee to harassment may be unlawful. In 1 case, the employer of a lobby attendant in an office building required the lobby attendant to wear themed uniforms, which changed approximately every 6 months. The uniform that became the subject of a lawsuit was designed in celebration of the United States’ Bicentennial. It consisted of a flag ‘‘poncho,’’ which snapped at the sleeves and was open at the sides. Underneath the poncho, the employee was permitted to wear ‘‘blue dancer pants and sheer stockings’’ but was not permitted to wear a shirt, blouse, a Danskin, pants, or a skirt. Unfortunately, because of her height and the ill-fitting poncho, when the employee wore the uniform, various parts of her body were revealed. The employee expressed her
concern, and the uniform was slightly altered, but the alterations did not remedy her concerns. Nonetheless, she wore the uniform to work. As a result, she was subjected to sexual propositions, lewd comments, and gestures. Despite complaints to the building manager, however, no steps were taken to remedy the situation. Therefore, the employee wore another, less revealing uniform from a previous season, and she was asked to leave the floor. Eventually, she was terminated. The court found the employer had violated Title VII. Therefore, although employers can impose reasonable grooming and dress requirements, they do not have the ‘‘unfettered discretion’’ to require employees to wear uniforms that are revealing and sexually provocative, especially if such requirements are inconsistent with the business needs of the company (EEOC v Sage Realty Corp). General appearance In August 2005, a divided California Supreme Court issued its decision in Yanowitz v L’Oreal USA, Inc. Yanowitz was a regional manager for a cosmetics company. While she was walking through a department store with her male boss, he demanded that she fire a female sales associate whom he found unattractive. He then pointed out a young attractive blonde woman and told her: ‘‘Get me one that looks like that!’’ Yanowitz refused to fire the unattractive woman, and she alleged that her boss then launched a campaign of retaliation against her by soliciting negative information about her from her subordinates, giving her unwarranted negative evaluations and unjustified criticism, and so on. Eventually she went out on leave because of stress and never returned. She sued, and the trial court awarded summary judgment to L’Oreal. The court of appeal reversed, and the California Supreme Court affirmed the appellate court. The first issue the court addressed was whether Yanowitz reasonably believed her boss’ order to fire an unattractive female salesperson was unlawful sex discrimination. It found she did, because she claimed she had supervised male and female sales associates over the years and had never been ordered to fire a male salesperson for being unattractive. The court held a trier of fact could find
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Dress Codes and Appearance Policies disparate treatment in this purportedly unequal standard of attractiveness (the court failed to address the possibility that maybe Yanowitz never supervised any unattractive male salespersons). The court declined to decide the issue of whether a ‘‘gender-neutral requirement that a cosmetic sales associate be physically or sexually attractive would itself be in violation of the [Fair Employment and Housing Act]’’ or could reasonably be viewed by an employee as ‘‘unlawfully discriminatory.’’ The court did add in a footnote, however, that had L’Oreal presented evidence that physical attractiveness is a BFOQ (bona fide occupational qualification) for cosmetic salespersons or that managers were required to make employment decisions on the basis of physical attractiveness, the reasonableness of Yanowitz’s belief that her boss’ order was discriminatory ‘‘might be questionable.’’ The Yanowitz court holds that unequal standards of attractiveness are illegal, but what this really means is unclear. How is ‘‘attractiveness’’ to be judged? And how is ‘‘inequality’’ to be determined? Just as is the case with employees in other protected categories, unattractive employees to whom bad things happen at work are likely to assume that it is on account of their looks. Moreover, the Yanowitz court leaves open the possibility that even genderneutral requirements that employees be attractive could be illegal. Also, many other jurisdictions may follow the lead of the California Supreme Court. It is certainly reasonable to assume that this new and dangerous analysis could spread to other states and courts. Indeed, in recent years, there has been the enactment of legislation prohibiting appearance-based discrimination. The District of Columbia’s statute prohibiting employment discrimination includes ‘‘personal appearance’’ as a protected category. See D.C. Code Ann. x 2-1402.11(a). ‘‘Personal appearance’’ is defined as ‘‘the outward appearance of any person, irrespective of sex, with regard to bodily condition or characteristics, manner or style of dress, and manner or style of personal grooming, including, but not limited to, hairstyle and beards.’’ See D.C. Code Ann.x 2-1401.02(22). Similarly, a Santa Cruz, California, ordinance prohibits discrimination based on, among other
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things, ‘‘physical characteristics,’’ which are defined as ‘‘a bodily condition or characteristic of any person, which is from birth, accident, or disease, or from any natural physical development, or any event outside the control of that person including individual physical mannerisms’’ (Santa Cruz Municipal Code x 9.83.01). A Michigan statute prohibits discrimination based on height or weight, but it does not provide coverage for other aspects of physical appearance. See Mich. Comp. Laws x 37.2202(1)(a). A statute written as broadly as the District of Columbia’s would seemingly permit all sorts of bizarre displays of personal expression in the workplace. Tongue studs, nose rings, tattoos, brightly colored hair, and even body odor would likely have to be accommodated. Two reported cases that have arisen under the District of Columbia statute illustrate some of the problems posed by this type of legislation. Atlantic Richfield Co. v District of Columbia Commission on Human Rights involved a lawsuit by an employee claiming to have been constructively discharged by her supervisor’s comments about her appearance. The only comments regarding the claimant’s appearance were that her blouses were too tight, causing buttons to pop open and show cleavage, and questions concerning the cost of her clothes. The claimant’s supervisor also criticized other aspects of her behavior, including her sitting with her legs open, her overly friendly approach to some office visitors and her rudeness to messengers and coworkers, her boisterous behavior, and her mentioning the employer’s name during an incident at a restaurant. The Commission found that the claimant was discriminated against based on her personal appearance and constructively terminated by her supervisor’s ‘‘continuous barrage of derogatory comments about her appearance, behavior, and morality.’’ The appellate court affirmed. It recognized that much of the ‘‘barrage’’ of ‘‘derogatory comments’’ addressed the claimant’s behavior rather than her appearance, but it agreed with the Commission that the ‘‘nonappearance subjects of respondent’s criticism were merely pretexts for harassment that was motivated by disapproval of her personal appearance.’’
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Under such an approach, how an employer would maintain a dress code or prohibit inappropriate dress or behavior likely to lead to claims of sexual harassment is a bit of a mystery. To tell an employee to button up her blouse would risk a claim of personal appearance discrimination; to allow her to roam about the workplace unbuttoned would almost certainly result in a hostile environment claim from an offended coworker. Another case applied the District of Columbia’s statute to transsexuals. In Underwood v Archer Management Services, Inc, a transsexual employee whose position was eliminated sued for discrimination based on sex, sexual orientation, and physical appearance. The court granted the employer’s motion to dismiss her claims for sex and sexual orientation discrimination, finding that transsexuals were not protected under either category. It let stand her claim of physical appearance discrimination, however, based on her being a transsexual and ‘‘retaining some masculine traits.’’ Jewelry With regard to jewelry, the general rule permitting different rules for males and females likely will apply, if the policy is reasonably based on societal norms or business need, and is not based on ‘‘immutable characteristics.’’ For example, a court upheld an employer’s prohibition of earrings on male employees as opposed to female employees, when there were no allegations that the policy was unevenly applied or that some male employees were permitted to wear earrings (Kleinsorge v Eyeland Corp). Thus, in the context of gender-based issues, for any appearance policy, although it is permissible to have different requirements for men and women, employers should closely examine those requirements to ensure that such requirements do not treat men and women differently in the terms and conditions of their employment and that the different requirements are based on accepted societal norms. SEXUAL ORIENTATION DISCRIMINATION The traditional view of courts has been that Title VII does not cover sexual orientation, for
example, Simonton v Runyon, Wrightson v Pizza Hut of America, Inc, and Williamson v A.G. Edwards & Sons, Inc. This view is based in part on the fact that federal legislation specifically prohibiting discrimination in employment based on sexual orientation, the ‘‘Employment Non-Discrimination Act,’’ has failed to pass Congress despite numerous tries. The reasoning goes that if Congress intended for sexual orientation discrimination to be unlawful it would have enacted this legislation. Such legislation is presently found only at the state level. At least 11 states (California, Connecticut, Hawaii, Massachusetts, Minnesota, Nevada, New Hampshire, New Jersey, Rhode Island, Vermont, Wisconsin) and the District of Columbia have enacted laws prohibiting discrimination on the basis of sexual orientation. Homosexual plaintiffs have occasionally succeeded in Title VII claims in recent years nonetheless. Two principal theories have been advanced. The first grows out of the Supreme Court’s holding in Oncale v Sundowner Offshore Services, Inc, that male-on-male sexual harassment is actionable. In Oncale, a male was subjected to physical and verbal abuse of a sexual nature by male coworkers. The Court rejected the notion that same-sex harassment was not actionable under Title VII; if harassment is of a sexual nature, reasoned the Oncale Court, it falls within the scope of Title VII’s prohibitions. The Ninth Circuit relied on Oncale in finding that harassment of a homosexual male was prohibited by Title VII in Rene v MGM Grand Hotel, Inc. In Rene, the plaintiff was subjected to a pattern of physical and verbal harassment that he contended was based on his sexual orientation. A majority of the Ninth Circuit’s en banc panel found the conduct to be actionable under Title VII, but the 2 factions that constituted a majority reached that conclusion for different reasons. One faction, led by Judge William Fletcher, found the contact unlawful because it was sexual in nature (blowing the plaintiff kisses, calling him ‘‘sweetheart’’ and ‘‘doll,’’ touching his private areas); the fact that it may have been motivated by the plaintiff’s sexual orientation
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Dress Codes and Appearance Policies was deemed by this group of judges to be irrelevant. The other faction of the majority in Rene, led by Judge Harry Pregerson, embraced the second theory by which homosexuals have attempted to come within the scope of Title VII. They viewed the conduct as ‘‘gender stereotyping’’ harassment of the type found to be unlawful in Price Waterhouse and Nichols v Azteca Restaurants. They viewed the harassment suffered by the plaintiff as inflicted upon him by his coworkers because they did not perceive him to conform to a gender stereotype. This view involved a bit of a reach, however, because unlike in Nichols, there was no overt evidence that the harassers in Rene taunted the plaintiff because he ‘‘walked like a woman’’ or otherwise exhibited feminine mannerisms. Rather, this faction of the majority largely just assumed that the plaintiff’s coworkers harassed him because they did not think he conformed to a gender stereotype. The court in Bianchi v City of Philadelphia was more critical of this approach. The plaintiff in Bianchi was the subject of harassment by coworkers who believed him to be a homosexual. The court found this to be insufficient to make out a claim under Title VII and granted summary judgment for the employer. It distinguished Price Waterhouse and Nichols as those cases involved comments from harassers about the plaintiffs’ gender versus their sexual orientation. It found no evidence that the harassment was the result of the plaintiff’s ‘‘failure to match the societal ideal of manliness.’’ As the court observed: ‘‘Not only has Bianchi failed to present evidence indicating he deviated from an ideal of manliness, he explicitly states his belief that the harassment was based. . . on the mistaken belief that he was a homosexual.’’ This, according to the court, defeated his Title VII claim. See also Simonton v Runyon (distinguishing nonconformity with gender norms from sexual orientation) and Bibby v Philadelphia Coca Cola Bottling Co (homosexual plaintiff had no claim under Title VII because he did not claim he was harassed because he failed to comply with societal stereotypes of how men ought to appear or behave).
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The Second Circuit expressed hostility toward the concept of using a gender stereotyping theory to ‘‘bootstrap protection for sexual orientation under Title VII’’ in Dawson v Bumble & Bumble. The plaintiff in Dawson was a lesbian female who worked in a hair salon that the court described as a ‘‘heterogeneous environment that strives for the avant garde and extols the unconventional,’’ and the plaintiff’s supervisor who fired her was a transsexual. The plaintiff claimed she was told that she was being fired because she was unhappy and because of the way she dressed and wore her hair; her supervisor told her that she could not be sent outside New York or New Jersey to work because ‘‘people won’t understand you. . . you’ll frighten them.’’ After reaffirming that the plaintiff could not state a claim based on her sexual orientation, the Dawson court went on to find insufficient evidence that the plaintiff was terminated on account of her failure to conform to a gender stereotype. DISCRIMINATION AGAINST TRANSGENDERED PERSONS Title VII coverage Until recently, courts uniformly held that transsexuals are not covered by the sex discrimination prohibition of Title VII. For example, in Ulane v Eastern Airlines, the court held that ‘‘sex’’ under Title VII meant ‘‘biological sex’’ and not ‘‘sexual identity.’’ As the court explained: The phrase in Title VII prohibiting discrimination based on sex, in its plain meaning, implies that it is unlawful to discriminate against women because they are women and against men because they are men. The words of Title VII do not outlaw discrimination against a person who has a sexual identity disorder, ie, a person born with a male body who believes himself to be female, or a person born with a female body who believes herself to be male; a prohibition against discrimination based on an individual’s sex is not synonymous with a prohibition against discrimination based on an individual’s sexual
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identity disorder or discontent with the sex into which they were born. Other courts took a similar view, for example, Sommers v Budget Marketing, Inc, and Holloway v Arthur Andersen & Co. A more recent case, Oiler v Winn-Dixie Louisiana, Inc, held that a truck driver who was fired after it was learned that he was a cross-dresser in his off hours was not protected under Title VII. The plaintiff, relying on Price Waterhouse v Hopkins, claimed he was terminated for his failure to conform to a gender stereotype. The court rejected this argument, however. It maintained that ‘‘[t]his is not just a matter of an employee of one sex exhibiting characteristics associated with the opposite sex. This is a matter of a person of one sex assuming the role of a person of the opposite sex,’’ which the court likened to a gender identity disorder. Significantly, however, the court in Smith v City of Salem, Ohio, reached a contrary result in 2004. In that case, a fire department lieutenant, who was born male and diagnosed with gender identity disorder, brought a Title VII action against the city alleging sex discrimination. The case was dismissed by the district court, which held that Title VII does not prohibit discrimination based on an individual’s transsexuality, but the Sixth Circuit reversed. The court found that the plaintiff had sufficiently made claims of sexual stereotyping and gender discrimination under a Price Waterhouse analysis. It noted that most of the prior decisions denying transsexuals Title VII protection were decided prior to Price Waterhouse and that Price Waterhouse ‘‘eviscerated’’ those precedents. It explained: After Price Waterhouse, an employer who discriminates against women because, for instance, they do not wear dresses or makeup, is engaging in sex discrimination because the discrimination would not occur but for the victim’s sex. It follows that employers who discriminate against men because they do wear dresses and makeup, or otherwise act femininely, are also engaging in sex discrimination, because the discrimination would not occur but for the victim’s sex.
The Smith court therefore concluded that discrimination based on failure to conform to sex stereotypes violates Title VII. Smith signaled a shift in the courts’ approach in favor of transgendered persons under Title VII. Less than 1 year later, the Sixth Circuit reaffirmed its Smith decision in Barnes v City of Cincinnati. In that case, the plaintiff, a male-to-female transsexual, was a police officer who sought promotion to become a sergeant. His superiors, however, refused to promote him citing his feminine appearance and behavior. The plaintiff, who lived as a male while on duty, but often lived as a woman while off duty, ‘‘had a French manicure, had arched eyebrows, and came to work with makeup or lipstick on his face on some occasions.’’ Plaintiff’s superiors counseled him to be and act ‘‘more masculine.’’ In accordance with its holding in Smith, the Sixth Court determined that the plaintiff ‘‘established that he was a member of a protected class by alleging discrimination against [his employer] for his failure to conform to sex stereotypes’’ (Barnes v City of Cincinnati). In more recent decisions, courts have continued to hold that transsexuals are not a protected class under Title VII, but failure to conform to gender stereotyping is discriminatory ‘‘because of sex,’’ which is prohibited by Title VII. Etsitty v Utah Transit Authority, 502 F.3d 1215 (10th Cir. 2007); Lewis v Heartland Inns of America, LLC, 591 F.3d 1033 (8th Cir. 2010); and Glenn v Brumby, 663 F.3d 1312 (11th Cir. 2011). The applicability of Title VII of the Civil Rights Act of 1964 to issues involving LGBT (lesbian, gay, bisexual, and transsexual) persons is in a state of flux, much like the changing societal viewpoints toward such issues. Thus, it is imperative that the law applicable in an employer’s particular jurisdiction be assessed when issues involving an LGBT person are encountered. A 2011 case decided by the 11th Circuit Court of Appeals, sitting in Atlanta, and having federal jurisdiction over the states of Alabama, Georgia, and Florida, offers the following assessment of law in Glenn v Brumby, 663 F.3d 1312, 1318 (11th Cir. 2011) ‘‘Prior to the Supreme Court’s decision in Price Waterhouse, several courts concluded that
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Dress Codes and Appearance Policies Title VII afforded no protection to transgender victims of sex discrimination. See, for example, Ulane v E. Airlines, Inc, 742 F.2d 1081, 1087 (7th Cir.1984) (concluding that discrimination against plaintiff was ‘‘not because she is female, but because she is transsexual’’); Sommers v Budget Mktg., Inc, 667 F.2d 748, 750 (8th Cir.1982) (rejecting transgender plaintiff’s claim as falling outside ‘‘the traditional definition’’ of sex under Title VII); Holloway v Arthur Andersen & Co, 566 F.2d 659, 663 (9th Cir.1977) (‘‘Congress has not shown any intent other than to restrict the term ‘sex’ to its traditional meaning.’’); Voyles v Ralph K. Davies Med. Ctr, 403 F.Supp. 456, 457 (N.D. Cal.1975) (holding that Title VII was not intended to ‘‘embrace ‘transsexual’ discrimination’’). However, since the decision in Price Waterhouse, federal courts have recognized with near-total uniformity that ‘‘the approach in Holloway, Sommers, and Ulane. . . has been eviscerated’’ by Price Waterhouse’s holding that ‘‘Title VII’s reference to ‘sex’ encompasses both the biological differences between men and women, and gender discrimination, that is, discrimination based on a failure to conform to stereotypical gender norms.’’ Smith, 378 F.3d at 573; see also Schwenk, 204 F.3d at 1201 (‘‘The initial judicial approach taken in cases such as Holloway has been overruled by the logic and language of Price Waterhouse’’); Rosa, 214 F.3d at 215-16 (affirming that transgender plaintiffs may claim sex discrimination based on their nonconformity with gender stereotype). But see Creed v Family Express Corp., no. 3:06-CV-465, 2009 WL 35237, at *8-10, 2009 US Dist. LEXIS 237, at *21-27 (N.D. In. January 5, 2009) (permitting employer to fire transgender employee based on his failure to conform to dress code and grooming policy); Etsitty v Utah Trans. Auth, no. 2:04-CV-616, 2005 WL 1505610, at *4-5, 2005 US Dist. LEXIS 12634, at *11-14 (D. Utah June 24, 2005), aff’d 502 F.3d 1215 (10th Cir.2007) (concluding that Price Waterhouse is inapplicable to transsexuals); Oiler v Winn-Dixie La, Inc, 2002 WL 31098541, at *6, 2002 US Dist. LEXIS 17417, at *29 (E.D. La. September 16, 2002) (distinguishing Price Waterhouse on the basis that ‘‘[t]he
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plaintiff in that case may not have behaved as the partners thought a woman should have, but she never pretended to be a man. . .’’). The pre–Price Waterhouse cases’ reliance on the presumed intent of Title VII’s drafters is also inconsistent with Oncale v Sundowner Offshore Services, Inc, where the Supreme Court held that original legislative intent must not be given controlling weight in interpreting Title VII. See 523 US 75, 79-80, 118 S. Ct. 998, 140 L.Ed.2d 201 (1998) (‘‘Statutory prohibitions [such as Title VII] often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed’’). It is clear, however, that federal antidisability discrimination statutes, particularly the Rehabilitation Act and Americans With Disabilities Act, specifically state that they do not apply to LGBT persons. Section 12211(a) of the ADA specifically states that homosexuality and bisexuality are not impairments and therefore not disabilities, and Section 12211(b) excludes from the definition of disability transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual disorders. State laws To date, Minnesota, Illinois, New Mexico, and Rhode Island, in addition to California, have enacted specific legislation protecting transgendered persons against workplace discrimination. In addition, state courts or administrative agencies have construed state antidiscrimination statutes to cover transgendered persons in Connecticut, Massachusetts, New Jersey, and New York. The new California statute also addresses an employer’s right to enforce a dress code, but with an important caveat: Nothing in this part relating to genderbased discrimination affects the ability of an employer to require an employee to adhere to reasonable workplace appearance, grooming, and dress standards not precluded by other provisions of state or federal law, provided that an employer shall allow an
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employee to appear or dress consistently with the employee’s gender identity. Thus, while an employer may require employees to observe a dress code, it appears that employees are free to choose which gender’s dress code they will follow! MANAGING THE TRANSSEXUAL EMPLOYEE The Sixth Circuit’s decision in Smith and state laws protecting transgendered employees will pose a significant challenge for employers who will now have to assimilate transgendered employees into the workforce. A few large employers have already adopted rules and guidelines for the treatment of transgendered employees. One example is American Airlines, which expanded its equal opportunity statement in 2001 to include gender identity. That company’s policy defines ‘‘gender identity’’ narrowly, however, as covering only those individuals who, with the documented support of medical or psychological professionals in accordance with accepted standards of care, ‘‘are changing or have changed their physical characteristics to facilitate personal and public redefinition of their sex as opposite that which they were assigned at birth.’’ The policy requires transitioning employees to provide medical information every 6 months to the company’s medical department. But for covered employees, the policy applies to harassment, discipline, compensation, benefits, and training. A recent SHRM (Society of Human Resources Management) white paper on managing transsexual employees highlights the need to train affected managers and coworkers who share a workplace with a transsexual employee. It notes that many employees are likely to harbor an unfavorable image of transsexuals: Misconceptions about transsexualism can be drawn from media portrayals of transsexuals as neurotic, dysfunctional, flamboyant, sex-crazed, perverted, or depressed. They may appear as prostitutes, people in unstable relationships, drug abusers, or serial killers. Misinformation abounds on the Internet, where transsexual people are often portrayed as sex workers, and it can be found that 50% to 90% of transsexuals commit suicide.
See Janis Walworth, Managing Transsexual Transition in the Workplace, Society for Human Resource Management White Paper (August 2003). Given this negative image, even if training is provided, transsexual employees are nonetheless likely to become the target of insensitive and harassing inquiries or slurs by coworkers. Such may particularly be true with respect to transsexuals who have not yet completed the transition from one sex to another. Which restroom? One of the most difficult questions employers face in accommodating a transgendered employee is which restroom such a person should use. SHRM’s recent white paper advises: ‘‘Transsexual workers, like all other employees, should use the restroom appropriate for their gender presentation. Once a transsexual person has begun coming to work in her new role, she should use any restroom designated for her new gender.’’ It continues: It is awkward for a woman to walk into the men’s room or for a man to enter the women’s room, regardless of the shape of their genitals. If transsexual individuals are forced to use the restroom of their original sex until their genitals are sufficiently transformed despite their appearance as members of their new sex, it singles them out for embarrassment and humiliation and in some cases exposes them to a risk of violence. It announces to everyone in the vicinity (including visitors to the work site) that the transsexual person’s genitals do not match her gender presentation, thus violating her privacy. This source concludes: ‘‘In short, restroom use should not depend on genitalia. Since genitals are not used in the performance of most jobs, they should not be subjects of inquiry for employers or coworkers.’’ Although perhaps well intentioned, the SHRM approach is too simplistic and unrealistic. Concerns raised by employees forced to share a restroom with an employee of the opposite
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Dress Codes and Appearance Policies sex who is in the process of transitioning to the other sex cannot be so easily dismissed. A male employee in the early stages of the transition process toward becoming a female is likely to cause consternation, if not panic, upon entering a women’s restroom. In Sommers v Budget Marketing, Inc, for example, the plaintiff, a transsexual, was terminated as a result of a number of female employees threatening to quit if she was allowed to use the women’s restroom. The court affirmed dismissal of the case on the ground that Title VII does not cover transsexuals, but it observed that the ‘‘appropriate remedy is not immediately apparent to this court. Should Budget allow Sommers to use the female restroom, the male restroom, or one for Sommers’ own use?’’ American Airlines has taken the opposite approach. Its Workplace Guidelines for Transgendered Employees state: Restroom access issues need to be handled with sensitivity not only to our obligation to provide transitioning employees with the same level of restroom access available to nontransgendered employees, but also to the emotional responses [of] coworkers to the idea of sharing facilities with a transgendered coworker. Our restroom access policy is clear. An employee should use the facility based on his or her current gender. However, once transition is complete, a transgendered employee has the right to the same access as a nontransgendered employee of the same gender. While this approach does not eliminate the possibility of harassment of the employee still in the process of transition who is required to use the restroom of his or her soon former sex, it would tend to lessen the impact on other employees required to use a restroom with an employee who is not yet of the same sex. The Minnesota Supreme Court addressed the issue of restroom use by a transgendered employee in Goins v West Group. In that case, Julienne Goins, a transsexual who had not undergone genital reconstruction surgery, used the women’s restroom at her new workplace. This caused female employees to express concern about using a restroom with an employee who was biologically a male. The
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employer then required Goins to use a singleoccupancy restroom on another floor or in a different building. She refused to comply and suggested instead that her coworkers be trained and educated so as to allay their fears. After being threatened with disciplinary action, Goins resigned, alleging that a hostile working environment had developed. She sued under Minnesota’s statute prohibiting gender identity discrimination. She argued that the employer had violated the statute by designating restroom use according to biological sex rather than an employee’s self-identified gender. The Minnesota Supreme Court rejected this argument, holding that the statute cannot be read to govern an employer’s designation of restroom use. The court additionally observed that placing restrictions on an employer’s ability to designate restroom facilities on the basis of biological sex would similarly restrict employer discretion in the assignment of locker and restroom facilities, which would be undesirable. The court also rejected the plaintiff’s hostile environment claim, noting that ‘‘scrutiny, gossip, stares [and] glares’’ of coworkers, while inappropriate, were not the type of severe or pervasive conduct required to support a hostile environment claim. While the result in Goins is encouraging for employers, there is no guarantee that courts elsewhere will reach similar results. The solution imposed by the employer in Goins— assignment of the transgendered employee to a single-occupancy restroom—might make sense if such a facility is available, and some employers might move toward installing such facilities in order to avoid problems. It is likely only a matter of time, however, before a transgendered employee will claim in litigation that a ‘‘separate but equal’’ approach is no more acceptable when applied to assignment of restrooms based on gender identity than when applied to assignment of schools based on race. Such an employee may demand to use the restroom of his preferred gender as opposed to that of his biological sex. The employer in such a scenario is likely to become caught between the transgendered employee on one hand and employees mortified by the presence of the transgendered employee in their restroom on the other.
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Dress Codes and Appearance Policies: Challenges Under Federal Legislation, Part 2 Title VII of the Civil Rights Act and Gender Michael S. Mitchell, JD, LLM; Clifford M. Koen Jr, JD; Stephen M. Darden, JD As more and more individuals express themselves with tattoos and body piercings and push the envelope on what is deemed appropriate in the workplace, employers have an increased need for creation and enforcement of reasonable dress codes and appearance policies. As with any employment policy or practice, an appearance policy must be implemented and enforced without regard to an individual’s race, color, gender, national origin, religion, disability, age, or other protected status. A policy governing dress and appearance based on the business needs of an employer that is applied fairly and consistently and does not have a disproportionate effect on any protected class will generally be upheld if challenged in court. By examining some of the more common legal challenges to dress codes and how courts have resolved the disputes, health care managers can avoid many potential problems. This article, the second part of a 3-part examination of dress codes and appearance policies, focuses on the issue of gender under the Civil Rights Act of 1964. Pertinent court cases that provide guidance for employers are addressed. Key words: dress and appearance policy, employment discrimination, gender and transgender, health care managers, legal environment
GENDER As long as the policies are not based on ‘‘immutable’’ characteristics, it is generally acceptable to require men and women to adhere to different modes of grooming and dress. Thus, requiring men to wear neckties and women to wear appropriate business attire is perfectly acceptable. Appearance and grooming policies have been upheld where they impose differing
Author Affiliations: Fisher & Phillips, LLP, New Orleans, Louisiana (Mr Mitchell); Department of Management and Marketing, East Tennessee State University, Johnson City (Mr Koen); Hunter, Smith & Davis, LLP, Johnson City, Tennessee (Mr Darden). The authors have no conflicts of interest. Correspondence: Clifford M. Koen Jr, JD, Department of Management and Marketing, East Tennessee State University, Johnson City, TN 37614-1709 ([email protected]). DOI: 10.1097/01.HCM.0000440617.09020.d3
requirements with regard only to ‘‘mutable,’’ or changeable, characteristics, such as facial hair or hair length, and are in conjunction with societal norms. Not surprisingly, many of the challenges on the basis of sex first arose in the 1970s in the context of the regulation of men’s hair length. Most courts facing a challenge to the enforcement of an appearance policy limiting length of men’s hair while allowing women to wear longer hair have found in favor of the employer. In one of the more recent challenges to such a policy implemented at Blockbuster, the court found such a policy did not violate Title VII of the Civil Rights Act or the state antidiscrimination law. Courts have upheld such policies in the face of gender discrimination claims because dress and grooming standards are not based on ‘‘immutable’’ characteristics (Harper v Blockbuster Entertainment Corp). Employers should be aware, however, that grooming policies should regulate the appearance
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Dress Codes and Appearance Policies of men and women to the same degree—even if the exact requirements differ. One court noted that policies regulating hair length for men but not women did not violate Title VII because the policy subjected men and women to strict grooming policies; that is, men were required to keep their hair trimmed above the earlobe and were permitted to wear a neatly trimmed mustache but not a beard; women were required to wear a ‘‘neat’’ hairstyle, were not permitted to wear offbeat or extreme hair styles, and were required to secure long hair so it did not fall freely (Dodge v Giant Food, Inc). Grooming In 2006, the Ninth Circuit reaffirmed employers’ rights to enforce different standards on men and women as long as the burden is equal in Jespersen v Harrah’s Operating Company, Inc. The plaintiff in that case was a bartender at a Harrah’s sports bar for approximately 20 years. During much of her tenure, Harrah’s encouraged, but did not require, female employees to wear makeup. The plaintiff refused, claiming that makeup made her physically ill, feel degraded, and interfered with her ability to perform her job. In 2000, Harrah’s implemented an ‘‘Image Transformation Program’’ for beverage department employees, that imposed specific appearance standards, including that they be well groomed, appealing to the eye, and firm and body toned. Females were required to wear makeup, stockings, colored nail polish, and wear their hair in a certain manner. Male employees had to maintain short haircuts and neatly trimmed fingernails, and they were prohibited from wearing makeup. The plaintiff refused to comply with the makeup requirement. She was given 30 days to apply for a position that did not require makeup, but she failed to do so and was terminated. The Jespersen court held that sex-based differences in appearance standards may be enforceable to the extent that they impose ‘‘equal burdens’’ on male and female employees. It noted that employers are free to implement ‘‘[g]rooming standards that appropriately differentiate between the genders’’ and that such policies are not, per se, facially discriminatory.
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In analyzing the Harrah’s policy, the Jespersen court held that the total burden for each sex must be compared, not just the fact that women were required to wear makeup and men were not. The court found that the plaintiff had failed to present evidence establishing the financial cost and the time it required of women to put on makeup to comply with the employer’s appearance standard, and even if she had, she would then have had to show that this cost outweighed the burden imposed on the male bartenders who were required to keep short haircuts and neatly trimmed fingernails. The court held that with respect to sex stereotyping, appearance standards, including makeup requirements, ‘‘may well be the subject of a Title VII claim,’’ but ultimately rejected the plaintiff’s Price Waterhouse argument that she was being discriminated against because of her failure to conform to a feminine stereotype. Dress Although there is no particular federal employment law that regulates the right to wear certain clothing, employers’ appearance policies addressing a person’s dress should be neutral. In general, it is permissible to treat male and female employees differently in accordance with social norms and reasonable business judgment, such as requiring men to wear neckties. However, if a dress code places additional burdens on one sex and not the other, the policy may be found to be discriminatory. For example, requiring female employees to wear uniforms or smocks, contact lenses, or sexually provocative clothing and not requiring the same of male employees have been found to violate federal law, specifically Title VII of the Civil Rights Act of 1964. Employers should also be mindful of religious accommodation issues discussed below. In 1 case, the female employees of a bank were required to wear certain uniforms, whereas men were simply required to wear business attire. The court found that this policy treated men and women differently with regard to compensation because the women’s uniforms were treated and taxed as compensation; the company required the women to pay for the
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THE HEALTH CARE MANAGER/JANUARY–MARCH 2014
cleaning and maintenance of the uniforms; and the women were required to purchase extra uniform pieces at their own expense. The court concluded that the different treatment of men and women with regard to 2 entirely separate dress codes could not be justified by business necessity, as the employer had a variety of nondiscriminatory alternative means to ensure good grooming. Notably, men had been required to wear uniforms several years prior to the time the case arose. (Carroll v Talman Federal Savings and Loan Association of Chicago). Although in 1 case a court found prohibiting women from wearing pants was lawful, the case was decided in 1979. The court likened the ‘‘no pants’’ policy to policies regarding hair length and found that prohibiting women working in certain areas of the company from wearing pantsuits was more closely related to the company’s choice as to how to run its business than the company’s obligation to provide equal employment opportunities. But employers should be aware that the interpretation of such a policy may now be different, given the current societal norms. In fact, California law prohibits such a practice, and therefore, employers should ensure that any policy treating men and women differently, outside societal norms, and without a good business justification, may violate equal employment opportunity laws (Lanigan v Bartlett and Co. Grain). Dress standards that subject an employee to harassment may be unlawful. In 1 case, the employer of a lobby attendant in an office building required the lobby attendant to wear themed uniforms, which changed approximately every 6 months. The uniform that became the subject of a lawsuit was designed in celebration of the United States’ Bicentennial. It consisted of a flag ‘‘poncho,’’ which snapped at the sleeves and was open at the sides. Underneath the poncho, the employee was permitted to wear ‘‘blue dancer pants and sheer stockings’’ but was not permitted to wear a shirt, blouse, a Danskin, pants, or a skirt. Unfortunately, because of her height and the ill-fitting poncho, when the employee wore the uniform, various parts of her body were revealed. The employee expressed her
concern, and the uniform was slightly altered, but the alterations did not remedy her concerns. Nonetheless, she wore the uniform to work. As a result, she was subjected to sexual propositions, lewd comments, and gestures. Despite complaints to the building manager, however, no steps were taken to remedy the situation. Therefore, the employee wore another, less revealing uniform from a previous season, and she was asked to leave the floor. Eventually, she was terminated. The court found the employer had violated Title VII. Therefore, although employers can impose reasonable grooming and dress requirements, they do not have the ‘‘unfettered discretion’’ to require employees to wear uniforms that are revealing and sexually provocative, especially if such requirements are inconsistent with the business needs of the company (EEOC v Sage Realty Corp). General appearance In August 2005, a divided California Supreme Court issued its decision in Yanowitz v L’Oreal USA, Inc. Yanowitz was a regional manager for a cosmetics company. While she was walking through a department store with her male boss, he demanded that she fire a female sales associate whom he found unattractive. He then pointed out a young attractive blonde woman and told her: ‘‘Get me one that looks like that!’’ Yanowitz refused to fire the unattractive woman, and she alleged that her boss then launched a campaign of retaliation against her by soliciting negative information about her from her subordinates, giving her unwarranted negative evaluations and unjustified criticism, and so on. Eventually she went out on leave because of stress and never returned. She sued, and the trial court awarded summary judgment to L’Oreal. The court of appeal reversed, and the California Supreme Court affirmed the appellate court. The first issue the court addressed was whether Yanowitz reasonably believed her boss’ order to fire an unattractive female salesperson was unlawful sex discrimination. It found she did, because she claimed she had supervised male and female sales associates over the years and had never been ordered to fire a male salesperson for being unattractive. The court held a trier of fact could find
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Dress Codes and Appearance Policies disparate treatment in this purportedly unequal standard of attractiveness (the court failed to address the possibility that maybe Yanowitz never supervised any unattractive male salespersons). The court declined to decide the issue of whether a ‘‘gender-neutral requirement that a cosmetic sales associate be physically or sexually attractive would itself be in violation of the [Fair Employment and Housing Act]’’ or could reasonably be viewed by an employee as ‘‘unlawfully discriminatory.’’ The court did add in a footnote, however, that had L’Oreal presented evidence that physical attractiveness is a BFOQ (bona fide occupational qualification) for cosmetic salespersons or that managers were required to make employment decisions on the basis of physical attractiveness, the reasonableness of Yanowitz’s belief that her boss’ order was discriminatory ‘‘might be questionable.’’ The Yanowitz court holds that unequal standards of attractiveness are illegal, but what this really means is unclear. How is ‘‘attractiveness’’ to be judged? And how is ‘‘inequality’’ to be determined? Just as is the case with employees in other protected categories, unattractive employees to whom bad things happen at work are likely to assume that it is on account of their looks. Moreover, the Yanowitz court leaves open the possibility that even genderneutral requirements that employees be attractive could be illegal. Also, many other jurisdictions may follow the lead of the California Supreme Court. It is certainly reasonable to assume that this new and dangerous analysis could spread to other states and courts. Indeed, in recent years, there has been the enactment of legislation prohibiting appearance-based discrimination. The District of Columbia’s statute prohibiting employment discrimination includes ‘‘personal appearance’’ as a protected category. See D.C. Code Ann. x 2-1402.11(a). ‘‘Personal appearance’’ is defined as ‘‘the outward appearance of any person, irrespective of sex, with regard to bodily condition or characteristics, manner or style of dress, and manner or style of personal grooming, including, but not limited to, hairstyle and beards.’’ See D.C. Code Ann.x 2-1401.02(22). Similarly, a Santa Cruz, California, ordinance prohibits discrimination based on, among other
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things, ‘‘physical characteristics,’’ which are defined as ‘‘a bodily condition or characteristic of any person, which is from birth, accident, or disease, or from any natural physical development, or any event outside the control of that person including individual physical mannerisms’’ (Santa Cruz Municipal Code x 9.83.01). A Michigan statute prohibits discrimination based on height or weight, but it does not provide coverage for other aspects of physical appearance. See Mich. Comp. Laws x 37.2202(1)(a). A statute written as broadly as the District of Columbia’s would seemingly permit all sorts of bizarre displays of personal expression in the workplace. Tongue studs, nose rings, tattoos, brightly colored hair, and even body odor would likely have to be accommodated. Two reported cases that have arisen under the District of Columbia statute illustrate some of the problems posed by this type of legislation. Atlantic Richfield Co. v District of Columbia Commission on Human Rights involved a lawsuit by an employee claiming to have been constructively discharged by her supervisor’s comments about her appearance. The only comments regarding the claimant’s appearance were that her blouses were too tight, causing buttons to pop open and show cleavage, and questions concerning the cost of her clothes. The claimant’s supervisor also criticized other aspects of her behavior, including her sitting with her legs open, her overly friendly approach to some office visitors and her rudeness to messengers and coworkers, her boisterous behavior, and her mentioning the employer’s name during an incident at a restaurant. The Commission found that the claimant was discriminated against based on her personal appearance and constructively terminated by her supervisor’s ‘‘continuous barrage of derogatory comments about her appearance, behavior, and morality.’’ The appellate court affirmed. It recognized that much of the ‘‘barrage’’ of ‘‘derogatory comments’’ addressed the claimant’s behavior rather than her appearance, but it agreed with the Commission that the ‘‘nonappearance subjects of respondent’s criticism were merely pretexts for harassment that was motivated by disapproval of her personal appearance.’’
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THE HEALTH CARE MANAGER/JANUARY–MARCH 2014
Under such an approach, how an employer would maintain a dress code or prohibit inappropriate dress or behavior likely to lead to claims of sexual harassment is a bit of a mystery. To tell an employee to button up her blouse would risk a claim of personal appearance discrimination; to allow her to roam about the workplace unbuttoned would almost certainly result in a hostile environment claim from an offended coworker. Another case applied the District of Columbia’s statute to transsexuals. In Underwood v Archer Management Services, Inc, a transsexual employee whose position was eliminated sued for discrimination based on sex, sexual orientation, and physical appearance. The court granted the employer’s motion to dismiss her claims for sex and sexual orientation discrimination, finding that transsexuals were not protected under either category. It let stand her claim of physical appearance discrimination, however, based on her being a transsexual and ‘‘retaining some masculine traits.’’ Jewelry With regard to jewelry, the general rule permitting different rules for males and females likely will apply, if the policy is reasonably based on societal norms or business need, and is not based on ‘‘immutable characteristics.’’ For example, a court upheld an employer’s prohibition of earrings on male employees as opposed to female employees, when there were no allegations that the policy was unevenly applied or that some male employees were permitted to wear earrings (Kleinsorge v Eyeland Corp). Thus, in the context of gender-based issues, for any appearance policy, although it is permissible to have different requirements for men and women, employers should closely examine those requirements to ensure that such requirements do not treat men and women differently in the terms and conditions of their employment and that the different requirements are based on accepted societal norms. SEXUAL ORIENTATION DISCRIMINATION The traditional view of courts has been that Title VII does not cover sexual orientation, for
example, Simonton v Runyon, Wrightson v Pizza Hut of America, Inc, and Williamson v A.G. Edwards & Sons, Inc. This view is based in part on the fact that federal legislation specifically prohibiting discrimination in employment based on sexual orientation, the ‘‘Employment Non-Discrimination Act,’’ has failed to pass Congress despite numerous tries. The reasoning goes that if Congress intended for sexual orientation discrimination to be unlawful it would have enacted this legislation. Such legislation is presently found only at the state level. At least 11 states (California, Connecticut, Hawaii, Massachusetts, Minnesota, Nevada, New Hampshire, New Jersey, Rhode Island, Vermont, Wisconsin) and the District of Columbia have enacted laws prohibiting discrimination on the basis of sexual orientation. Homosexual plaintiffs have occasionally succeeded in Title VII claims in recent years nonetheless. Two principal theories have been advanced. The first grows out of the Supreme Court’s holding in Oncale v Sundowner Offshore Services, Inc, that male-on-male sexual harassment is actionable. In Oncale, a male was subjected to physical and verbal abuse of a sexual nature by male coworkers. The Court rejected the notion that same-sex harassment was not actionable under Title VII; if harassment is of a sexual nature, reasoned the Oncale Court, it falls within the scope of Title VII’s prohibitions. The Ninth Circuit relied on Oncale in finding that harassment of a homosexual male was prohibited by Title VII in Rene v MGM Grand Hotel, Inc. In Rene, the plaintiff was subjected to a pattern of physical and verbal harassment that he contended was based on his sexual orientation. A majority of the Ninth Circuit’s en banc panel found the conduct to be actionable under Title VII, but the 2 factions that constituted a majority reached that conclusion for different reasons. One faction, led by Judge William Fletcher, found the contact unlawful because it was sexual in nature (blowing the plaintiff kisses, calling him ‘‘sweetheart’’ and ‘‘doll,’’ touching his private areas); the fact that it may have been motivated by the plaintiff’s sexual orientation
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Dress Codes and Appearance Policies was deemed by this group of judges to be irrelevant. The other faction of the majority in Rene, led by Judge Harry Pregerson, embraced the second theory by which homosexuals have attempted to come within the scope of Title VII. They viewed the conduct as ‘‘gender stereotyping’’ harassment of the type found to be unlawful in Price Waterhouse and Nichols v Azteca Restaurants. They viewed the harassment suffered by the plaintiff as inflicted upon him by his coworkers because they did not perceive him to conform to a gender stereotype. This view involved a bit of a reach, however, because unlike in Nichols, there was no overt evidence that the harassers in Rene taunted the plaintiff because he ‘‘walked like a woman’’ or otherwise exhibited feminine mannerisms. Rather, this faction of the majority largely just assumed that the plaintiff’s coworkers harassed him because they did not think he conformed to a gender stereotype. The court in Bianchi v City of Philadelphia was more critical of this approach. The plaintiff in Bianchi was the subject of harassment by coworkers who believed him to be a homosexual. The court found this to be insufficient to make out a claim under Title VII and granted summary judgment for the employer. It distinguished Price Waterhouse and Nichols as those cases involved comments from harassers about the plaintiffs’ gender versus their sexual orientation. It found no evidence that the harassment was the result of the plaintiff’s ‘‘failure to match the societal ideal of manliness.’’ As the court observed: ‘‘Not only has Bianchi failed to present evidence indicating he deviated from an ideal of manliness, he explicitly states his belief that the harassment was based. . . on the mistaken belief that he was a homosexual.’’ This, according to the court, defeated his Title VII claim. See also Simonton v Runyon (distinguishing nonconformity with gender norms from sexual orientation) and Bibby v Philadelphia Coca Cola Bottling Co (homosexual plaintiff had no claim under Title VII because he did not claim he was harassed because he failed to comply with societal stereotypes of how men ought to appear or behave).
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The Second Circuit expressed hostility toward the concept of using a gender stereotyping theory to ‘‘bootstrap protection for sexual orientation under Title VII’’ in Dawson v Bumble & Bumble. The plaintiff in Dawson was a lesbian female who worked in a hair salon that the court described as a ‘‘heterogeneous environment that strives for the avant garde and extols the unconventional,’’ and the plaintiff’s supervisor who fired her was a transsexual. The plaintiff claimed she was told that she was being fired because she was unhappy and because of the way she dressed and wore her hair; her supervisor told her that she could not be sent outside New York or New Jersey to work because ‘‘people won’t understand you. . . you’ll frighten them.’’ After reaffirming that the plaintiff could not state a claim based on her sexual orientation, the Dawson court went on to find insufficient evidence that the plaintiff was terminated on account of her failure to conform to a gender stereotype. DISCRIMINATION AGAINST TRANSGENDERED PERSONS Title VII coverage Until recently, courts uniformly held that transsexuals are not covered by the sex discrimination prohibition of Title VII. For example, in Ulane v Eastern Airlines, the court held that ‘‘sex’’ under Title VII meant ‘‘biological sex’’ and not ‘‘sexual identity.’’ As the court explained: The phrase in Title VII prohibiting discrimination based on sex, in its plain meaning, implies that it is unlawful to discriminate against women because they are women and against men because they are men. The words of Title VII do not outlaw discrimination against a person who has a sexual identity disorder, ie, a person born with a male body who believes himself to be female, or a person born with a female body who believes herself to be male; a prohibition against discrimination based on an individual’s sex is not synonymous with a prohibition against discrimination based on an individual’s sexual
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THE HEALTH CARE MANAGER/JANUARY–MARCH 2014
identity disorder or discontent with the sex into which they were born. Other courts took a similar view, for example, Sommers v Budget Marketing, Inc, and Holloway v Arthur Andersen & Co. A more recent case, Oiler v Winn-Dixie Louisiana, Inc, held that a truck driver who was fired after it was learned that he was a cross-dresser in his off hours was not protected under Title VII. The plaintiff, relying on Price Waterhouse v Hopkins, claimed he was terminated for his failure to conform to a gender stereotype. The court rejected this argument, however. It maintained that ‘‘[t]his is not just a matter of an employee of one sex exhibiting characteristics associated with the opposite sex. This is a matter of a person of one sex assuming the role of a person of the opposite sex,’’ which the court likened to a gender identity disorder. Significantly, however, the court in Smith v City of Salem, Ohio, reached a contrary result in 2004. In that case, a fire department lieutenant, who was born male and diagnosed with gender identity disorder, brought a Title VII action against the city alleging sex discrimination. The case was dismissed by the district court, which held that Title VII does not prohibit discrimination based on an individual’s transsexuality, but the Sixth Circuit reversed. The court found that the plaintiff had sufficiently made claims of sexual stereotyping and gender discrimination under a Price Waterhouse analysis. It noted that most of the prior decisions denying transsexuals Title VII protection were decided prior to Price Waterhouse and that Price Waterhouse ‘‘eviscerated’’ those precedents. It explained: After Price Waterhouse, an employer who discriminates against women because, for instance, they do not wear dresses or makeup, is engaging in sex discrimination because the discrimination would not occur but for the victim’s sex. It follows that employers who discriminate against men because they do wear dresses and makeup, or otherwise act femininely, are also engaging in sex discrimination, because the discrimination would not occur but for the victim’s sex.
The Smith court therefore concluded that discrimination based on failure to conform to sex stereotypes violates Title VII. Smith signaled a shift in the courts’ approach in favor of transgendered persons under Title VII. Less than 1 year later, the Sixth Circuit reaffirmed its Smith decision in Barnes v City of Cincinnati. In that case, the plaintiff, a male-to-female transsexual, was a police officer who sought promotion to become a sergeant. His superiors, however, refused to promote him citing his feminine appearance and behavior. The plaintiff, who lived as a male while on duty, but often lived as a woman while off duty, ‘‘had a French manicure, had arched eyebrows, and came to work with makeup or lipstick on his face on some occasions.’’ Plaintiff’s superiors counseled him to be and act ‘‘more masculine.’’ In accordance with its holding in Smith, the Sixth Court determined that the plaintiff ‘‘established that he was a member of a protected class by alleging discrimination against [his employer] for his failure to conform to sex stereotypes’’ (Barnes v City of Cincinnati). In more recent decisions, courts have continued to hold that transsexuals are not a protected class under Title VII, but failure to conform to gender stereotyping is discriminatory ‘‘because of sex,’’ which is prohibited by Title VII. Etsitty v Utah Transit Authority, 502 F.3d 1215 (10th Cir. 2007); Lewis v Heartland Inns of America, LLC, 591 F.3d 1033 (8th Cir. 2010); and Glenn v Brumby, 663 F.3d 1312 (11th Cir. 2011). The applicability of Title VII of the Civil Rights Act of 1964 to issues involving LGBT (lesbian, gay, bisexual, and transsexual) persons is in a state of flux, much like the changing societal viewpoints toward such issues. Thus, it is imperative that the law applicable in an employer’s particular jurisdiction be assessed when issues involving an LGBT person are encountered. A 2011 case decided by the 11th Circuit Court of Appeals, sitting in Atlanta, and having federal jurisdiction over the states of Alabama, Georgia, and Florida, offers the following assessment of law in Glenn v Brumby, 663 F.3d 1312, 1318 (11th Cir. 2011) ‘‘Prior to the Supreme Court’s decision in Price Waterhouse, several courts concluded that
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Dress Codes and Appearance Policies Title VII afforded no protection to transgender victims of sex discrimination. See, for example, Ulane v E. Airlines, Inc, 742 F.2d 1081, 1087 (7th Cir.1984) (concluding that discrimination against plaintiff was ‘‘not because she is female, but because she is transsexual’’); Sommers v Budget Mktg., Inc, 667 F.2d 748, 750 (8th Cir.1982) (rejecting transgender plaintiff’s claim as falling outside ‘‘the traditional definition’’ of sex under Title VII); Holloway v Arthur Andersen & Co, 566 F.2d 659, 663 (9th Cir.1977) (‘‘Congress has not shown any intent other than to restrict the term ‘sex’ to its traditional meaning.’’); Voyles v Ralph K. Davies Med. Ctr, 403 F.Supp. 456, 457 (N.D. Cal.1975) (holding that Title VII was not intended to ‘‘embrace ‘transsexual’ discrimination’’). However, since the decision in Price Waterhouse, federal courts have recognized with near-total uniformity that ‘‘the approach in Holloway, Sommers, and Ulane. . . has been eviscerated’’ by Price Waterhouse’s holding that ‘‘Title VII’s reference to ‘sex’ encompasses both the biological differences between men and women, and gender discrimination, that is, discrimination based on a failure to conform to stereotypical gender norms.’’ Smith, 378 F.3d at 573; see also Schwenk, 204 F.3d at 1201 (‘‘The initial judicial approach taken in cases such as Holloway has been overruled by the logic and language of Price Waterhouse’’); Rosa, 214 F.3d at 215-16 (affirming that transgender plaintiffs may claim sex discrimination based on their nonconformity with gender stereotype). But see Creed v Family Express Corp., no. 3:06-CV-465, 2009 WL 35237, at *8-10, 2009 US Dist. LEXIS 237, at *21-27 (N.D. In. January 5, 2009) (permitting employer to fire transgender employee based on his failure to conform to dress code and grooming policy); Etsitty v Utah Trans. Auth, no. 2:04-CV-616, 2005 WL 1505610, at *4-5, 2005 US Dist. LEXIS 12634, at *11-14 (D. Utah June 24, 2005), aff’d 502 F.3d 1215 (10th Cir.2007) (concluding that Price Waterhouse is inapplicable to transsexuals); Oiler v Winn-Dixie La, Inc, 2002 WL 31098541, at *6, 2002 US Dist. LEXIS 17417, at *29 (E.D. La. September 16, 2002) (distinguishing Price Waterhouse on the basis that ‘‘[t]he
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plaintiff in that case may not have behaved as the partners thought a woman should have, but she never pretended to be a man. . .’’). The pre–Price Waterhouse cases’ reliance on the presumed intent of Title VII’s drafters is also inconsistent with Oncale v Sundowner Offshore Services, Inc, where the Supreme Court held that original legislative intent must not be given controlling weight in interpreting Title VII. See 523 US 75, 79-80, 118 S. Ct. 998, 140 L.Ed.2d 201 (1998) (‘‘Statutory prohibitions [such as Title VII] often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed’’). It is clear, however, that federal antidisability discrimination statutes, particularly the Rehabilitation Act and Americans With Disabilities Act, specifically state that they do not apply to LGBT persons. Section 12211(a) of the ADA specifically states that homosexuality and bisexuality are not impairments and therefore not disabilities, and Section 12211(b) excludes from the definition of disability transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual disorders. State laws To date, Minnesota, Illinois, New Mexico, and Rhode Island, in addition to California, have enacted specific legislation protecting transgendered persons against workplace discrimination. In addition, state courts or administrative agencies have construed state antidiscrimination statutes to cover transgendered persons in Connecticut, Massachusetts, New Jersey, and New York. The new California statute also addresses an employer’s right to enforce a dress code, but with an important caveat: Nothing in this part relating to genderbased discrimination affects the ability of an employer to require an employee to adhere to reasonable workplace appearance, grooming, and dress standards not precluded by other provisions of state or federal law, provided that an employer shall allow an
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THE HEALTH CARE MANAGER/JANUARY–MARCH 2014
employee to appear or dress consistently with the employee’s gender identity. Thus, while an employer may require employees to observe a dress code, it appears that employees are free to choose which gender’s dress code they will follow! MANAGING THE TRANSSEXUAL EMPLOYEE The Sixth Circuit’s decision in Smith and state laws protecting transgendered employees will pose a significant challenge for employers who will now have to assimilate transgendered employees into the workforce. A few large employers have already adopted rules and guidelines for the treatment of transgendered employees. One example is American Airlines, which expanded its equal opportunity statement in 2001 to include gender identity. That company’s policy defines ‘‘gender identity’’ narrowly, however, as covering only those individuals who, with the documented support of medical or psychological professionals in accordance with accepted standards of care, ‘‘are changing or have changed their physical characteristics to facilitate personal and public redefinition of their sex as opposite that which they were assigned at birth.’’ The policy requires transitioning employees to provide medical information every 6 months to the company’s medical department. But for covered employees, the policy applies to harassment, discipline, compensation, benefits, and training. A recent SHRM (Society of Human Resources Management) white paper on managing transsexual employees highlights the need to train affected managers and coworkers who share a workplace with a transsexual employee. It notes that many employees are likely to harbor an unfavorable image of transsexuals: Misconceptions about transsexualism can be drawn from media portrayals of transsexuals as neurotic, dysfunctional, flamboyant, sex-crazed, perverted, or depressed. They may appear as prostitutes, people in unstable relationships, drug abusers, or serial killers. Misinformation abounds on the Internet, where transsexual people are often portrayed as sex workers, and it can be found that 50% to 90% of transsexuals commit suicide.
See Janis Walworth, Managing Transsexual Transition in the Workplace, Society for Human Resource Management White Paper (August 2003). Given this negative image, even if training is provided, transsexual employees are nonetheless likely to become the target of insensitive and harassing inquiries or slurs by coworkers. Such may particularly be true with respect to transsexuals who have not yet completed the transition from one sex to another. Which restroom? One of the most difficult questions employers face in accommodating a transgendered employee is which restroom such a person should use. SHRM’s recent white paper advises: ‘‘Transsexual workers, like all other employees, should use the restroom appropriate for their gender presentation. Once a transsexual person has begun coming to work in her new role, she should use any restroom designated for her new gender.’’ It continues: It is awkward for a woman to walk into the men’s room or for a man to enter the women’s room, regardless of the shape of their genitals. If transsexual individuals are forced to use the restroom of their original sex until their genitals are sufficiently transformed despite their appearance as members of their new sex, it singles them out for embarrassment and humiliation and in some cases exposes them to a risk of violence. It announces to everyone in the vicinity (including visitors to the work site) that the transsexual person’s genitals do not match her gender presentation, thus violating her privacy. This source concludes: ‘‘In short, restroom use should not depend on genitalia. Since genitals are not used in the performance of most jobs, they should not be subjects of inquiry for employers or coworkers.’’ Although perhaps well intentioned, the SHRM approach is too simplistic and unrealistic. Concerns raised by employees forced to share a restroom with an employee of the opposite
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Dress Codes and Appearance Policies sex who is in the process of transitioning to the other sex cannot be so easily dismissed. A male employee in the early stages of the transition process toward becoming a female is likely to cause consternation, if not panic, upon entering a women’s restroom. In Sommers v Budget Marketing, Inc, for example, the plaintiff, a transsexual, was terminated as a result of a number of female employees threatening to quit if she was allowed to use the women’s restroom. The court affirmed dismissal of the case on the ground that Title VII does not cover transsexuals, but it observed that the ‘‘appropriate remedy is not immediately apparent to this court. Should Budget allow Sommers to use the female restroom, the male restroom, or one for Sommers’ own use?’’ American Airlines has taken the opposite approach. Its Workplace Guidelines for Transgendered Employees state: Restroom access issues need to be handled with sensitivity not only to our obligation to provide transitioning employees with the same level of restroom access available to nontransgendered employees, but also to the emotional responses [of] coworkers to the idea of sharing facilities with a transgendered coworker. Our restroom access policy is clear. An employee should use the facility based on his or her current gender. However, once transition is complete, a transgendered employee has the right to the same access as a nontransgendered employee of the same gender. While this approach does not eliminate the possibility of harassment of the employee still in the process of transition who is required to use the restroom of his or her soon former sex, it would tend to lessen the impact on other employees required to use a restroom with an employee who is not yet of the same sex. The Minnesota Supreme Court addressed the issue of restroom use by a transgendered employee in Goins v West Group. In that case, Julienne Goins, a transsexual who had not undergone genital reconstruction surgery, used the women’s restroom at her new workplace. This caused female employees to express concern about using a restroom with an employee who was biologically a male. The
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employer then required Goins to use a singleoccupancy restroom on another floor or in a different building. She refused to comply and suggested instead that her coworkers be trained and educated so as to allay their fears. After being threatened with disciplinary action, Goins resigned, alleging that a hostile working environment had developed. She sued under Minnesota’s statute prohibiting gender identity discrimination. She argued that the employer had violated the statute by designating restroom use according to biological sex rather than an employee’s self-identified gender. The Minnesota Supreme Court rejected this argument, holding that the statute cannot be read to govern an employer’s designation of restroom use. The court additionally observed that placing restrictions on an employer’s ability to designate restroom facilities on the basis of biological sex would similarly restrict employer discretion in the assignment of locker and restroom facilities, which would be undesirable. The court also rejected the plaintiff’s hostile environment claim, noting that ‘‘scrutiny, gossip, stares [and] glares’’ of coworkers, while inappropriate, were not the type of severe or pervasive conduct required to support a hostile environment claim. While the result in Goins is encouraging for employers, there is no guarantee that courts elsewhere will reach similar results. The solution imposed by the employer in Goins— assignment of the transgendered employee to a single-occupancy restroom—might make sense if such a facility is available, and some employers might move toward installing such facilities in order to avoid problems. It is likely only a matter of time, however, before a transgendered employee will claim in litigation that a ‘‘separate but equal’’ approach is no more acceptable when applied to assignment of restrooms based on gender identity than when applied to assignment of schools based on race. Such an employee may demand to use the restroom of his preferred gender as opposed to that of his biological sex. The employer in such a scenario is likely to become caught between the transgendered employee on one hand and employees mortified by the presence of the transgendered employee in their restroom on the other.
Copyright © 2014 Wolters Kluwer Health | Lippincott Williams & Wilkins. Unauthorized reproduction of this article is prohibited.
