Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Saturday, January 30, 2010

Clerk who lacked "Midwestern girl look" could pursue sex stereotyping claim


Lewis v Heartland Inns of America, LLC, ____F.3d____(8th Cir. January 21, 2010), is an interesting case.

The 8th held that the lower court improperly granted summary judgment in favor of an employer on a hotel desk clerk's Title VII sex-stereotyping claim that she was discharged because she dressed like Ellen DeGeneres, lacked a "Midwestern girl look" and was not pretty enough. The plaintiff alleged that the  employer discharged her not because of her qualifications or job performance, but because her appearance did not comport with the employer's preferred feminine stereotype. An adverse employment decision based on "gender non-conforming behavior and appearance" is impermissible under Price-Waterhouse. Further, such criticism of an employee before terminating her may be found by a reasonable factfinder to be evidence of wrongful sex stereotyping. The district court also erred in requiring the employee to offer evidence that similarly situated men were treated differently. Supreme Court precedent does not compel a female employee alleging sex discrimination to prove men were not subjected to the same challenged discriminatory conduct or show that the discrimination affected anyone other than herself, noted the majority. Here, the employer did not follow its own disciplinary procedure in discharging the employee and only later alleged the discharge was for poor job performance.

Mitchell H. Rubinstein

Employment Discrimination | Permalink


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