604 F.2d 1028 (7th Cir. 1979), 78-1458, Carroll v. Talman Federal Sav. and Loan Ass'n of Chicago

Docket Nº:78-1458.
Citation:604 F.2d 1028
Party Name:CA 79-3151 Mary M. CARROLL, on behalf of herself and all others similarly situated, Plaintiff-Appellant, v. TALMAN FEDERAL SAVINGS AND LOAN ASSOCIATION OF CHICAGO, Defendant-Appellee.
Case Date:August 21, 1979
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 1028

604 F.2d 1028 (7th Cir. 1979)

CA 79-3151 Mary M. CARROLL, on behalf of herself and all

others similarly situated, Plaintiff-Appellant,

v.

TALMAN FEDERAL SAVINGS AND LOAN ASSOCIATION OF CHICAGO,

Defendant-Appellee.

No. 78-1458.

United States Court of Appeals, Seventh Circuit

August 21, 1979

Argued Dec. 6, 1978.

Michael T. Welch, Winston & Strawn, Chicago, Ill., for plaintiff-appellant.

Robert A. Deane, Chicago, Ill., for defendant-appellee.

Before CASTLE, Senior Circuit Judge, CUMMINGS and PELL, Circuit Judges.

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CUMMINGS, Circuit Judge.

Plaintiff's amended complaint was brought under Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e Et seq.) on behalf of herself and all similarly situated female employees of defendant savings and loan association. The gravamen of the complaint was that defendant imposed a dress code on its female office employees without imposing a comparable dress code on its male office employees. Plaintiff moved for certification of her class and both parties moved for summary judgment. The district court did not certify a class because it granted the defendant's motion for summary judgment on the ground that its female dress code does "not prevent employment opportunity" under Section 703(a)(2) of Title VII (note 12 Infra ). 448 F.Supp. 79, 83. Since this case was based on Section 703(a)(1) (note 2 Infra ) rather than Section 703(a)(2), the employment opportunity test used by the district court was erroneous and requires us to reverse and remand.

Defendant requires all of its female tellers, office and managerial employees to wear a uniform, whereas male employees in the same positions need wear only customary business attire. This may consist of a suit, a sport jacket and pants, or even a "leisure suit," as long as it is worn with a shirt and tie. It is of course understandable that defendant wishes its employees to wear suitable business attire. However, the question before us is whether its one-sided rule requiring its 525 female employees to wear uniforms while there is no such requirement for its comparable 150 male employees 1 is forbidden by Section 703(a)(1) of Title VII of the Civil Rights Act of 1964. 2 By this rule defendant discriminated against plaintiff with respect to her "compensation, terms, conditions, or privileges of employment" because of her sex although such conduct is proscribed by the literal terms of that Section.

When the Equal Employment Opportunity Commission investigated plaintiff's complaint, it concluded that defendant's female dress policy constituted a "disparity in the terms and conditions of females as a class" and that possible customer preference for uniforms was "not a defense to an employment policy which makes a distinction upon grounds not permitted by Title VII" (P.App. 19). Therefore, the Commission tried to settle the matter and, when unsuccessful, issued a right-to-sue letter to plaintiff (P.App. 20), thus enabling this lawsuit to be filed.

The district court noted that the uniforms that females must wear consist of five basic items: a color-coordinated skirt or slacks and a choice of a jacket, tunic or vest (P.App. 94). As the reproduced photograph shows, 3 there is no question that the various combinations depict uniforms.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

In contrast to the written uniform requirement for women employees, comparable male employees are permitted to wear business suits or business-type sport jackets and pants and ties (P.App. 21), and they are also permitted to wear leisure suits with a "suitable

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shirt and tie" (P.App. 36). Until 1968 they too were required to wear uniforms (P.App. 32).

The written dress code for female employees even discriminates with respect to their compensation, for defendant treats the cost of the two-piece uniform which it furnishes as income to women employees, withholding income tax on that amount from their wages (P.App. 91). In addition, the female employees are required to pay for the cleaning and maintenance of their uniforms "which must be clean and neat at all times" (P.App. 22). If a part of the uniform becomes lost or damaged, the employee must replace it at her own expense. Moreover, if an employee wishes additional parts of the uniform for variety or so that it can be cleaned more frequently than once a month, these extra pieces must also be purchased at her own expense. The written dress code for females also discriminates against them with respect to the "terms, conditions, or privileges of employment" because they are required to wear these uniforms each working day except the last Tuesday of each month, when they are normally being cleaned, and during the week between Christmas and New Year's (P.App. 21, 67, 94). As in plaintiff's case, defendant suspends employees if they do not conform to the dress code (P.App. 25).

Laffey v. Northwest Airlines, Inc., 366 F.Supp. 763 (D.D.C.1973), vacated and remanded in part and affirmed in part, 185 U.S.App.D.C. 322, 567 F.2d 429 (1976), certiorari denied, 434 U.S. 1086, 98 S.Ct. 1281, 55 L.Ed.2d 792, sets the stage for the proper disposition of this dispute. There the district court held that an airline's ruling forbidding female cabin attendants to wear eyeglasses violated Section 703(a)(1) of Title VII (366 F.Supp. 763, 790), and the airline did not appeal from that aspect of this decision. See 567 F.2d at 454, n. 170. However, the court of appeals affirmed the district court's comparable holding that inferior pay scales and weight limitations imposed upon stewardesses as compared to stewards (then known as pursers) violated Title VII. Because of this holding the court of appeals obviously would have agreed with the district court's rulings that the airline had violated the stewardesses' statutory rights by prohibiting them from wearing eyeglasses, requiring them to purchase prescribed luggage, and imposing on them a shorter height limitation than on stewards. 4

The dissenting opinion of Judge Pell characterizes both the male and female dress codes as resulting in ordinary business attire and concludes that the two rules are only semantically different. However, it is the compulsion to wear a uniform which by its color, cut and homogeneity is clearly identifiable with the employer that evinces the discriminatory nature of the written dress code for females. 5 The dissent relies on the fact that the female uniforms are not "unattractive in style, inferior in quality, ill-fitting, or uncomfortable such that they would cause embarrassment or be considered demeaning," but that is no answer to the discrimination involved. 6 Finally, the dissent relies on the fact that the female dress code "did not Substantially burden the female employees more than male employees in the enjoyment of their jobs" (emphasis supplied), but that is not the criterion imposed in Section 703(a)(1) of the Act, for that Section was "intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes." Sprogis v. United Air Lines, 444 F.2d 1194, 1198 (7th Cir. 1971), certiorari denied, 404 U.S. 991, 92

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S.Ct. 536, 30 L.Ed.2d 543. 7 Also, it is immaterial that some of the female employees favored the uniform dress code because, as Justice Stevens stated in Los Angeles Dept. of Water & Power v. Manhart, 435 U.S. 702, 707, 98 S.Ct. 1370, 55 L.Ed.2d 657, Section 703(a)(1) makes it unlawful to discriminate against any individual because of such individual's sex. He added:

"The statute's focus on the individual is unambiguous. It precludes treatment of individuals as simply components of a racial, religious, sexual, or national class. If height is required for a job, a tall woman may not be refused employment merely because, on the average, women are too short. Even a true generalization about the class is an insufficient reason for disqualifying an individual to whom the generalization does not apply.

"Even if the statutory language were less clear, the basic policy of the statute requires that we focus on fairness to individuals rather than fairness to classes." (435 U.S. at 708, 709, 98 S.Ct. at 1375-1376.) 8

Section 703(e) of the statute permits sex discrimination in employment where sex "is a bona fide occupational qualification reasonably necessary to the normal operation" of the particular business (42 U.S.C. § 2000e-2(e)). However, defendant does not rely on a "BFOQ" defense nor does defendant rely on any business necessity for this dress code (Br. 53-54). Instead its defense is that its dress code, if discriminatory, was job-related or reasonably necessary to the proper operation of its business (Br. 55, 57). But the courts have only permitted a stricter "business necessity doctrine" as an exception to Title VII, 9 and defendant has not attempted to justify the female dress code on the ground of business necessity (Br. 46-57).

As plaintiff has pointed out, defendant has several permissible alternatives to the present discriminatory dress code. Thus it could legitimately require women to wear "appropriate business attire" while at work, as in the case of the men employees, 10 or it could make the uniform optional to women employees. 11 Otherwise it could require comparable male employees to wear some sort of uniform while at work, as they did between 1958 and 1969, and as numerous other banks and savings institutions do. Title VII does not require that uniforms be abolished but that defendant's similarly situated employees be treated in an equal manner.

The employment opportunity grooming cases relied upon in the dissent and by defendant do not apply to the present situation, for this is a Section 703(a) (1) case rather than one brought under Section...

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