Gerdom v. Continental Airlines, Inc.

• Decision Date: 15 November 1982
• Docket Number: No. 79-3215,79-3215
• Citation: 692 F.2d 602
• Parties: 30 Fair Empl.Prac.Cas. 235, 30 Empl. Prac. Dec. P 33,156 Carole A. GERDOM, Plaintiff-Appellant, v. CONTINENTAL AIRLINES, INC., Defendant-Appellee. UNION OF FLIGHT ATTENDANTS, LOCAL NO. 1, Plaintiff-Appellant, v. CONTINENTAL AIRLINES, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 602

692 F.2d 602

30 Fair Empl.Prac.Cas. 235,

30 Empl. Prac. Dec. P 33,156

Carole A. GERDOM, Plaintiff-Appellant, v. CONTINENTAL AIRLINES, INC., Defendant-Appellee.

UNION OF FLIGHT ATTENDANTS, LOCAL NO. 1, Plaintiff-Appellant, v. CONTINENTAL AIRLINES, INC., Defendant-Appellee.

No. 79-3215.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 15, 1982.

Decided Nov. 15, 1982.

Jay D. Roth, Taylor & Roth, Los Angeles, Cal., for plaintiffs-appellants.

Willard Z. Carr, Jr., Gibson, Dunn & Crutcher, Los Angeles, Cal., argued, for defendant-appellee; H. Frederick Tepker, Gibson, Dunn & Crutcher, Los Angeles, Cal., on brief.

Appeal from the United States District Court for the Central District of California.

Before BROWNING, Chief Judge, CHOY, GOODWIN, WALLACE, KENNEDY, SKOPIL, SCHROEDER, FARRIS, PREGERSON, ALARCON, and BOOCHEVER, Circuit Judges.

SCHROEDER, Circuit Judge.

This appeal concerns the validity of a policy requiring employees classified as "flight hostesses," a position held only by women, to comply with strict weight requirements as a condition of their employment with Continental Airlines. The challenged weight program was in effect until 1973 and was imposed, according to Continental, to enhance its business image by assuring that passengers were served by attractive women. No similar requirements were enforced for any job classifications which included men.

The plaintiff, Carole A. Gerdom, whose record was otherwise exemplary, was suspended and eventually terminated from her flight hostess position because her weight exceeded the maximum permitted by Continental for her height. She filed this action seeking to represent a class of hostesses who were similarly suspended or terminated as a result of Continental's policy. She challenges the policy as unlawful discrimination on the basis of sex in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. Secs. 2000e et seq. ¹ The original panel decision of this court reversed

                the district court's order granting summary judgment for Continental, ordered certification of plaintiff's class, and remanded for trial on the merits.   See Gerdom v. Continental Airlines, Inc., 648 F.2d 1223 (9th Cir. 1981).  We granted plaintiff's petition for en banc consideration in order to determine whether the plaintiff class is entitled to judgment on the issue of liability.  We now hold that it is
                

FACTS AND PROCEDURAL HISTORY

The essential facts surrounding Continental's policy and its implementation are not disputed. Beginning in the early 1960's and continuing until 1973, weight regulations were in force for flight hostesses in accordance with a published chart based upon height and weight. A hostess five feet two inches tall could weigh no more than 114 pounds; five additional pounds were allowed for each inch above that height. All hostesses were weighed once a month in full uniform including shoes. If this procedure revealed any excess, a weight reduction program was imposed. The hostess was required to lose two pounds per week and her progress was verified. If she failed to meet the scheduled loss, the hostess was suspended and eventually terminated. The weight requirements were in addition to general appearance standards. During the period covered by this appeal, more than 100 hostesses were suspended and some, including the plaintiff Gerdom, were actually terminated.

The purpose of the weight program was, according to Continental, to create the public image of an airline which offered passengers service by thin, attractive women, whom executives referred to as Continental's "girls." Continental has never suggested that these weight limitations were necessary for the physical performance of plaintiffs' food and beverage service or safety duties on flights. The record also shows that the weight program was unrelated to health concerns; indeed there is considerable evidence that it undermined the hostesses' stamina and morale, and encouraged harmful methods of weight reduction. During the same period Continental enforced no similar weight program for an exclusively male category of employees, known as directors of passenger service (DPS), who supervised and assisted the flight hostesses in their duties on busy routes, helped with ticketing, and who, although receiving higher pay than the hostesses, performed similar tasks.

The weight program challenged here was modified in 1973 in the wake of the determination that airline companies could not maintain in-flight service personnel classifications based on gender. See Diaz v. Pan American World Airways, Inc., 442 F.2d 385 (5th Cir.), cert. denied, 404 U.S. 950, 92 S.Ct. 275, 30 L.Ed.2d 267 (1971). Although the trial court proceedings in this case encompassed weight policies adopted by Continental after it hired increased numbers of male flight attendants, we consider in this appeal only those policies which were in effect before the 1973 modifications and at the time this lawsuit was filed.

This litigation has an unusual history. The case was initially assigned to Judge Crary when it was filed in 1972. He granted partial summary judgment to the plaintiff on the ground that the policy violated Title VII because it applied only to women. Following that 1974 decision, the court monitored the weight policies which Continental then applied to male and female flight attendants. In 1978, however, Judge Crary died and the case was transferred to Judge Curtis, who granted reconsideration of the partial summary judgment previously awarded to plaintiffs and entered judgment for the defendants.

On appeal, the three-judge panel of this court reversed the district court's order denying class certification. A majority, however, held that the plaintiffs could not argue that the policy had an adverse impact on women under the analysis used in Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971) and Dothard v. Rawlinson, 433 U.S. 321, 97 S.Ct. 2720, 53 L.Ed.2d 786 (1977). The panel majority reasoned that because only women were hired for the position of flight hostess during We conclude that no such remand is necessary because the plaintiffs have adequately demonstrated that they were treated less favorably than men because of their sex. We therefore do not reach the applicability of disparate impact analysis to employment conditions imposed exclusively on a job classification restricted by race, religion, sex or national origin.

                the applicable period, plaintiffs were required to proceed under a theory of disparate treatment. 2   The majority held that the plaintiffs could show that they had been treated discriminatorily due to their sex if, upon remand, they could establish that men similarly situated had not been subjected to comparable burdens.  The panel thus remanded to determine whether "the different rules for flight attendants and DPSs violate Title VII."    648 F.2d at 1228
                

LEGAL ANALYSIS

The legal question is whether Continental's weight program for exclusively female flight attendants constitutes discriminatory treatment on the basis of sex as proscribed by Title VII. Plaintiffs stress that the program was intentionally designed to apply only to women employees. It resulted in a loss of wages and employment only for women employees and it was never applied to male employees, even those who worked side by side with plaintiffs serving passengers on flights.

Continental advances three reasons why plaintiffs should not be able to maintain this action for discriminatory treatment on the basis of sex. It argues first that employment standards which affect personal appearance are outside the purview of Title VII and, as a matter of law, cannot be discriminatory. Second, it argues that these employees cannot complain of discrimination because the flight hostess position was a popular one, sought by many women and denied to men, and therefore the only victims of discrimination were men. Finally, Continental argues that the weight program, even if facially discriminatory, can be justified by its judgment that female hostesses were central to its business image. We deal with each argument in turn.

In arguing that the weight restrictions in this case are simply a "grooming" requirement outside the purview of Title VII, Continental relies on a series of cases sanctioning different grooming standards for men and women where the requirements imposed no greater burden on one sex than on the other. Thus in Baker v. California Land Title Co., 507 F.2d 895 (9th Cir.1974), cert. denied, 422 U.S. 1046, 95 S.Ct. 2664, 45 L.Ed.2d 699 (1975), this court upheld a policy which prescribed a shorter hair length for men than for women. The record in that case permitted the trial court to conclude that comparable grooming standards existed and were enforced with equal vigor on both sexes. See Baker v. California Land Title Co., 349 F.Supp. 235, 237, 239 (C.D.Cal.1972), aff'd 507 F.2d 895 (9th Cir.1974), cert. denied, 422 U.S. 1046, 95 S.Ct. 2664, 45 L.Ed.2d 699 (1975). See also Fountain v. Safeway Stores, Inc., 555 F.2d 753, 756 (9th Cir. 1977) (employer may amend the rules for male or female employees to prevent them from becoming overly burdensome to that sex). We thus agree with the numerous decisions defining permissible grooming rules for male and female employees as those which do not significantly Thus Title VII has been held to have been violated where special appearance rules were imposed on members of only one sex. Carroll v. Talman Federal Sav. & Loan Ass'n, 604 F.2d 1028, 1032-33 (7th Cir.1979), cert. denied, 445 U.S. 929, 100 S.Ct. 1316, 63 L.Ed.2d 762 (1980). In Carroll, which involved a requirement to wear uniforms, the court noted that while there is nothing offensive about uniforms per se, requiring only female employees to wear them is "disparate treatment ... demeaning to women ... based on offensive stereotypes prohibited by Title VII." Id.

...