Friday, January 22, 2010

Eighth Circuit issues interesting appearance/sex stereotyping case

EverygirlboyThe Eighth Circuit issued an interesting opinion in a sex stereotyping/appearance case yesterday. In Lewis v. Heartland Inns, the court reversed summary judgment in favor of the defendant, finding that the plaintiff had presented enough evidence to suggest that she was fired for not conforming to sex stereotypes in her appearance.

Lewis worked in several desk clerk positions at Heartland Inns, received raises, customer compliments, and got along with her immediate supervisors. The problem arose when some time after Lewis was moved to a day shift position, the Director of Operations saw her. That manager had interviewed Lewis over the telephone and had approved the shift. From the opinion:

After seeing Lewis, . . . Cullinan [the Director] told Stifel [Lewis' direct supervisor] that she was not sure Lewis was a "good fit" for the front desk. Cullinan called Stifel a few days later and again raised the subject of Lewis' appearance. Lewis describes her own appearance as "slightly more masculine," and Stifel has characterized it as "an Ellen DeGeneres kind of look." Lewis prefers to wear loose fitting clothing, including men's button down shirts and slacks. She avoids makeup and wore her hair short at the time. Lewis has been mistaken for a male and referred to as "tomboyish."

Cullinan told Stifel that Heartland "took two steps back" when Lewis replaced Morgan Hammer who has been described as dressing in a more stereotypical feminine manner. As Cullinan expressed it, Lewis lacked the "Midwestern girl look." Cullinan was heard to boast about the appearance of women staff members and had indicated that Heartland staff should be "pretty," a quality she considered especially important for women working at the front desk. Cullinan also had advised a hotel manager not to hire a particular applicant because she was not pretty enough. The front desk job description in Heartland's personnel manual does not mention appearance.

The Director ordered the Supervisor to put Lewis back on the night shift, but the supervisor refused because Lewis had been doing such a good job. The Director insisted the Supervisor resign and then told Lewis that she would have to undergo a second interview for the position she held--the second interview to be conducted with new video equipment was instituted company wide, as well, for front desk positions, justified as needed to ensure that clerks had the appropriate appearance. 

At the second interview, Lewis objected, noted the appearance-related comments, and essentially set Lewis up to critique some recent policies. When she was fired, the company stated that it was because of her behavior during this interview and "hostility" to recent policies.

The court found that this was plenty of evidence that sex stereotyping was the real reason for the termination and additionally that there was sufficient evidence that the termination was in retaliation for her complaining about the discrimination. In its opinion, the court also made clear that comparator evidence is not required to prove that an employer is motivated because of the protected class of the employee. So Lewis did not have to prove that a man was not subject to the same second interview experience or same standard.

One judge dissented, stating that it did not appear that the appearance standard was being used to disadvantage women in the workplace generally. That judge also stated,

Apparently, the majority would hold that an employer violates Title VII if it declines to hire a female cheerleader because she is not pretty enough, or a male fashion model because he is not handsome enough, unless the employer proves the affirmative defense that physical appearance is a bona fide occupational qualification.

To which the answer must be, well, yes. Those are positions for which we might assume a particular gender conforming (although stylized and not necessarily natural) appearance would in fact be a BFOQ.

MM

https://lawprofessors.typepad.com/laborprof_blog/2010/01/eighth-circuit-issues-interesting-appearancesex-stereotyping-case.html

Employment Discrimination | Permalink

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