new thread
Hello all,
I just happened to stumble accross this California case that was decided in a California District Court (which means that employers only in CA must follow this if it's still good law). Now, a couple of caveats: The case was decided in 1972 and I didn't further research whether the case's legal rule has been overruled...so don't jump for joy yet. However, the fact that a court thought this way back in the early 70's is comforting. Lastly, since I didn't include the final outcome of the case, I just wanted to let you know that the 3 guys in the case were finally held to NOT be discriminated against, but it was because of reasons OTHER than long hair that their lay offs were upheld. The applicable legal analysis follows, where I think you'll be amazed:
From the District Court of CA: "The substantive issue is whether employee grooming standards wherein the allowable length of hair is different for male and female employees constitute unlawful discrimination on the basis of sex within the meaning of Section 703(a) of the Act, 42 U.S.C. § 2000e-2(a). The authorities are divided. Two district courts have held that discrimination between males and females on the basis of length of hair constitutes a violation of the Act. Donohue v. Shoe Corporation of America, Inc., 337 F.Supp. 1357 (C.D.Cal. 1972); Roberts v. General Mills, Inc., 337 F.Supp. 1055 (N.D.Ohio 1971). The Equal Employment Opportunity Commission has reached this same conclusion. Decision No. 71-1529, 1 CCH Employment Practices Guide 6231 (April 2, 1971). Two district courts have held to the contrary. Baker v. California Land Title Co., 349 F.Supp. 235 (C.D.Cal. May 1, 1972); Dodge v. Giant Food, Inc., 3 F.E.P. Cases 374 (D.D.C. 1971).
Section 703(a) of the Act provides in relevant part as follows:
"It shall be an unlawful employment practice for any 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 ... sex ...."
[5] The Equal Employment Opportunity Commission has determined that an individual's hair length and other personal appearance standards are terms and conditions of employment within the meaning of Section 703(a). Decision No. 71-1529, supra. This court agrees.
[6] The courts have adopted a two-step approach to determine whether an employment practice is prohibited by Title VII. The first inquiry is whether the practice discriminates against any person or group on the basis of an impermissible criterion, i.e., race, color, religion, sex or national origin. Secondly, if a practice is found to discriminate on the basis of religion, sex, or national origin, the practice may nevertheless be permissible in instances where it can be shown that religion, sex or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise. Section 703(e), 42 U.S.C. § 2000e-2(e). The burden of establishing that a discriminatory practice constitutes a bona fide occupational qualification rests with the employer. Bowe v. Colgate- Palmolive Co., supra; Weeks v. Southern Bell Telephone & Telegraph Co., 408 F.2d 228 (5th Cir. 1969).
[7] Is an employee dress and grooming code, wherein the allowable length of hair is different for males than for females, discrimination on the basis of sex within the meaning of Section 703(a)? This court concludes that it is. Certainly such a dress and grooming code amounts to "discrimination" within the meaning of the Act. An Interpretative Memorandum of Title VII states:
"It has been suggested that the concept of discrimination is vague. In fact it is clear and simple and has no hidden meanings. To discriminate is to make a distinction, to make a difference in treatment or favor ...." Interpretative Memorandum *665 of Title VII of H.R. 7152, 110 Cong. Rec. 7213 (1964).
That interpretation reflects the common understanding of the word and has been adopted by courts construing Title VII. In Phillips v. Martin Marietta Corporation, 400 U.S. 542, 91 S.Ct. 496, 27 L.Ed.2d 613 (1970), the Supreme Court, reversing a summary judgment in the employer's favor, held that the practice of hiring men with preschool age children while refusing to hire women with preschool age children amounted to discrimination on the basis of sex, in that the Act does not permit "one hiring policy for women and another for men- each having pre-school age children." 400 U.S. at 544, 91 S.Ct. at 498. See also Sprogis v. United Air Lines, Inc., supra, where the court held the employer violated the Act "by applying one standard for men and one for women". 444 F.2d at 1198. It is clear, therefore, that the term "discrimination" in this context contains no qualifications. Every difference in treatment is discrimination. Such discrimination is permissible only if it can be justified as a bona fide occupational qualification.
Such a dress code is not only discrimination; it is discrimination on the basis of sex. In Sprogis v. United Air Lines, Inc., supra, the Seventh Circuit Court of Appeals noted:
"In forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes." 444 F.2d at 1198.
See also Phillips v. Martin Marietta Corporation, supra, 400 U.S. at 545- 547, 91 S.Ct. 496 (Marshall, J., concurring). Moreover, the Equal Employment Opportunity Commission, whose interpretation of the Act is entitled to great deference by the courts, Griggs v. Duke Power Co., 401 U.S. 424, 433-434, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971), has determined by regulation that "so long as sex is a factor in the application of the [employer's] rule, such application involves a discrimination based on sex". 29 C.F.R. § 1604.3(a). Faced with the exact question now before this court, the Commission determined that the application of a long-hair policy to males only was discrimination on the basis of sex. Decision No. 71-1529, supra. This conclusion is correct. Whenever male employees are subject to one standard while female employees are subject to a different standard, this is discrimination on the basis of sex.
It does not matter that such a dress rule affects only those males whose hair length contravenes the employer's standards and not all males. "The effect of the statute is not to be diluted because discrimination adversely affects only a portion of the protected class." Sprogis v. United Air Lines, Inc., supra, 444 F.2d at 1198. See also 29 C.F.R. § 1604.3(a). Nor is it necessary that members of one sex benefit at the expense of members of the other sex to whom the discriminatory employment practice is applied. In this case the class of employees represented by the plaintiffs consisted entirely of males, more by chance than design. No females benefitted from the application of the alleged long-hair policy; nor were their employment opportunities enhanced. Such a dress policy nevertheless discriminates on the basis of sex because it reflects a stereotyped attitude toward one of the sexes. See Sprogis v. United Air Lines, Inc., supra. It must be remembered that Title VII "proscribes not only overt discrimination but also practices that are fair inform, but discriminatory in operation". Griggs v. Duke Power Co., 401 U.S. 424 at 431, 91 S.Ct. 849 at 853 (1971).
This court holds, therefore, that an employee dress and grooming code, whether written or unwritten, wherein the allowable length of hair is different for male and female employees is discrimination on the basis of sex within the meaning of Section 703(a) of the Act. Such discrimination is unlawful unless it can be justified as a bona fide *666 occupational qualification under Section 703(e).
In reaching this conclusion, the court does not intend in the slightest to disparage, much less prohibit, dress and grooming standards for employees. An employer has every right to adopt dress codes suitable to various job categories. He can insist that his employees present a clean and neat appearance. The health of the employees and the efficient operation of the enterprise may require such standards. A dress and grooming code, however, must be applied equally to everyone. It may not establish different standards for males and females; it may not discriminate on the basis of sex.
The issue of long hair on men tends to arouse the passions of many in our society today. In that regard the issue is no different from the issues of race, color, religion, national origin and equal employment rights for women, all of which are raised in Title VII. When this Nation was settled it was hoped that there be established a society where every individual would be judged according to his ability rather than who his father was, or what foreign land his family came from, or which part of town he happened to live in, or what the color of his skin was. Since then, millions of individuals have landed on our shores in search of opportunity-opportunity which was denied them in their homelands because of rigid class structures and irrational group stereotypes. The Civil Rights Act of 1964 was born of that hope. Although the legal technicalities are many, the message of the Act is clear: every person is to be treated as an individual, with respect and dignity. Stereotypes based upon race, color, religion, sex or national origin are to be avoided.
Title VII of that Act is designed to insure equal employment opportunity for all. Specifically, it prohibits discrimination in employment based upon irrational stereotypes of race, color, religion, sex and national origin. It is sad that legislation with such lofty goals must be cast in the negative language of civil prohibitions.
Males with long hair conjure up exactly the sort of stereotyped responses Congress intended to be discarded. On a visceral level, long hair may be associated with youth, campus riots, unemployed hippies and "troublemakers". Some employers argue that their professional image and reputation may suffer from hiring men who prefer to wear their hair in longer styles. Title VII does not permit the employer to indulge in such generalizations. The Act requires that every individual be judged according to his own conduct and job performance. Any stereotyped image of males with longer hair as "troublemakers" unjustifiably punishes a large class of prospective, otherwise qualified and competent employees, where an individualized response could adequately dispose of any real employment conflicts. This court may take judicial notice that under the fashion norms of today it is quite permissible for men to wear their hair in longer styles than a few years ago. Longer male hair styles are now widely accepted and little burden is placed upon the average employer by prohibiting him from discriminating between the sexes on the basis of hair length. Of course, in the absence of a bona fide occupational qualification, such discrimination would be prohibited in any case. See generally Griggs v. Duke Power Co., supra."
"The effect of the statute is not to be diluted because discrimination adversely affects only a portion of the protected class."
"An employer has every right to adopt dress codes suitable to various job categories. He can insist that his employees present a clean and neat appearance. The health of the employees and the efficient operation of the enterprise may require such standards. A dress and grooming code, however, must be applied equally to everyone. It may not establish different standards for males and females; it may not discriminate on the basis of sex."
THANX!
Yah, that particular passage caught my attention too.
I live here in CA. Some employers can require you to cut -- generally those positions that deal with the public (sales, etc.). I'm not sure if that is legal here or not. Perhaps, the company simply wouldn't hire you if you didn't cut your hair.
However, I've known several people that work (or have worked) for the state -- many of them were longhairs. I've also seen (very) long-haired lawyers; though they actually worked for the county I live in. I also knew a long-haired accountant that worked for the county.
So far, I've had no problems getting [technical] jobs here with long hair. I don't know about other fields of employment; but I've never been asked to cut or harrassed about my hair.
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Hi guys,
I haven't been coming around the board as of late, but Victor tipped me off to this thread and asked me to post my thoughts. So here goes...
That appears to be a FEDERAL case interpreting FEDERAL law, and since 1972 the discord between various federal courts on the issue has been settled by deciding that discrimination is okay. This is justified on the basis judges claim it is "not sex discrimination". It's an argument a grade school kid wouldn't buy, of course, but judges decide whatever they feel like if they feel they can politically get away with it.
As a result of this, the local federal agencies that process discrimination cases have been given a directive from higher up to not accept male long hair cases.
Anti-discrimination laws, just as are drug laws, are cumulative, of course - if EITHER the state or the federal government prohibits a discriminatory act, it is illegal. Thus, the federal situation does not shut us out - we have hope among the various state courts as that great recent Rhode Island parochial school case illustrated. Several states have handed us victories, particularly as concerns schools. Employment victories at this point of time in the U.S. are infrequent. We have seen some employment victories recently in Great Britain.
As for California, there are longhair-favorable San Francisco cases going back into the 1800s concerning the long hair of jailed Chinese men. There are also present-day cases interpreting the Unruh act, which applies to access to public accommodations as well as employment. Those interpretations have said that a business cannot exclude you as a customer for having long hair, but courts have not addressed the issue under Unruh concerning employment, so far as I know.
Interestingly, the California legislature has outlawed discrimination in the workplace against women who wear pants. Since pants are a traditional male style of dress, this would make discrimination against a longhaired man seem really illogical. Since pants can be readily swapped for dresses, this would seem to make the longhaired man's case even stronger, since long hair cannot be taken on and off when coming and going from the workplace. However, who's to say courts will be logical with this? As said before, they will do what they want if they can politically get away with it.
There was no significant political lobbying underlying the passage of the pants law, by the way. It came about because one woman was elected to the legislature and she found having to wear a dress offensive to her own taste. What this implies is that having one longhair in the legislature would be worth having a million longhairs passing petitions.
It's a shame anti-longhair bigotry was not forseen when the nation was founded. Had they known, all those longhairs in those convention halls would have put protection for us in the CONSTITUTION.
That appears to be a FEDERAL case interpreting FEDERAL law, and since 1972 the discord between various federal courts on the issue has been settled by deciding that discrimination is okay.
Enlightening post, Bill, thanks. Anyone other people from the UK know what the official legal stance is on this matter, if there even is one?
Mixed is the simple answer. We have to rely on civil cases brought under the Sex Discrimination Act which is loosely worded and not intended to cover this area in the first place. The Human Rights Act looks interesting though...
...an employee dress and grooming code, wherein the allowable length of hair is different for males than for females, discrimination on the basis of sex within the meaning of Section 703(a)? This court concludes that it is. Certainly such a dress and grooming code amounts to "discrimination" within the meaning of the Act.
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Some employers argue that their professional image and reputation may suffer from hiring men who prefer to wear their hair in longer styles. Title VII does not permit the employer to indulge in such generalizations. The Act requires that every individual be judged according to his own conduct and job performance.
Highly interesting read. Thanks, Fitmus!