Aros v. McDonnell Douglas Corporation

• Decision Date: 23 August 1972
• Docket Number: Civ. No. 71-2440-F.
• Citation: 348 F. Supp. 661
• Court: U.S. District Court — Central District of California
• Parties: Rudolph C. AROS et al., Plaintiffs, v. McDONNELL DOUGLAS CORPORATION, Defendant.

348 F. Supp. 661

Rudolph C. AROS et al., Plaintiffs, v. McDONNELL DOUGLAS CORPORATION, Defendant.

Civ. No. 71-2440-F.

United States District Court, C. D. California.

August 23, 1972.

Anderson, Litt, Lund & Tochman, Earle Tochman, Los Angeles, Cal., for plaintiffs.

Louis Lieber, Jr. and Eberhard Schmoller, Santa Monica, Cal., for defendant.

MEMORANDUM OPINION

FERGUSON, District Judge.

Plaintiffs bring this action under Section 703(a) of Title VII of the Civil Rights Act of 1964 (hereinafter, the Act), 42 U.S.C. § 2000e-2(a), seeking injunctive relief, reinstatement and back pay for alleged unlawful discrimination on the basis of sex. Plaintiffs allege that defendant McDonnell Douglas Corporation engaged in a practice of requiring its male employees to maintain a certain hair length and style while not requiring its female employees to maintain the same hair length and style, and that their employment with defendant was terminated for the reason that they wore their hair in a longer style and refused to cut it upon the defendant's request.

McDonnell Douglas raises several issues by way of defense. (1) One of the plaintiffs, Edward F. Loughrey, did not file a charge with the Equal Employment Opportunity Commission within 90 days of the alleged unlawful employment practice as required by Section 706(d) of the Act, 42 U.S.C. § 2000e-5(d). (2) Employee grooming standards wherein the allowable length of hair is different for male and female employees is not unlawful sex discrimination under Section 703(a) of the Act. (3) The plaintiffs were terminated for reasons other than the length of their hair. (4) The court lacked jurisdiction because the Equal Employment Opportunity Commission did not serve upon the defendant copies of the plaintiffs' complaints within a reasonable time after they were filed; nor did the Commission investigate the alleged unlawful employment practice and attempt conciliation as required by Sections 706(a) and (e) of the Act, 42 U.S.C. § 2000e-5(a) and 42 U.S.C. § 2000e-5(e). This last contention has been firmly resolved against the defendant. See Carr v. Conoco Plastics, Inc., 423 F.2d 57 (5th Cir. 1970), cert. denied, 400 U.S. 951, 91 S. Ct. 241, 27 L.Ed.2d 257; Johnson v. Seaboard Air Line Railroad Co., 405 F. 2d 645 (4th Cir. 1968), cert. denied, 394 U.S. 918, 89 S.Ct. 1189, 22 L.Ed.2d 451; Choate v. Caterpillar Tractor Co., 402 F.2d 357 (7th Cir. 1968).

McDonnell Douglas' first contention is that this court lacks jurisdiction to consider the claim of plaintiff Loughrey because he did not file a complaint with the Equal Employment Opportunity Commission within 90 days of the alleged unfair employment practice. It is admitted that plaintiffs Aros and Frolenko filed charges within the prescribed 90-day period. All three plaintiffs were terminated on September 25, 1970. Plaintiff Loughrey filed a written charge with the Commission on December 31, 1970, 97 days later. The question is whether plaintiff Loughrey is to be barred forever from asserting a claim of employment discrimination because he was seven days late in filing a charge with the Commission. The answer is he is not barred. The 90-day filing requirement is procedurally designed to insure that employers are not unduly prejudiced or disadvantaged by charges brought long after the occurrence of the alleged unfair employment practice. McDonnell Douglas has made no showing that it was in any way prejudiced by the untimely filing. Indeed, it is highly unlikely that it could show such prejudice, since plaintiffs Aros and Frolenko filed timely charges of employment discrimination arising out of the same incident in which all three plaintiffs were discharged.

Title VII is a remedial act, and the congressional purpose would not be furthered by requiring strict adherence to every procedural technicality. As the Fifth Circuit noted in the case of Sanchez v. Standard Brands, Inc., 431 F.2d 455, 460-461 (5th Cir. 1970):

"Mindful of the remedial and humanitarian underpinnings of Title VII and of the crucial role played by the private litigant in the statutory scheme, courts construing Title VII have been extremely reluctant to allow procedural technicalities to bar claims brought under the Act." (Footnote omitted.)

Since plaintiff Loughrey's charge before the Commission was adequate and proper in every respect except that it was filed seven days late, this court holds that there has been substantial compliance with the statutory requirements, and the court has jurisdiction to consider the claim of plaintiff Loughrey along with those of the other two plaintiffs.

This conclusion, it should be noted, is entirely consistent — and is in fact required — by another line of cases which holds that a suit for violation of Title VII is necessarily a class action, as the evil sought to be ended is discrimination on the basis of a class characteristic. Sprogis v. United Air Lines, Inc., 444 F.2d 1194 (7th Cir. 1971); Hutchings v. United States Industries, Inc., 428 F.2d 303 (5th Cir. 1970); Bowe v. Colgate-Palmolive Co., 416 F.2d 711 (7th Cir. 1969); Jenkins v. United Gas Corporation, 400 F.2d 28 (5th Cir. 1968); Oatis v. Crown Zellerbach Corp., 398 F.2d 496 (5th Cir. 1968). Since the court, in Title VII cases, has a special responsibility in the public interest to devise remedies which effectuate the policies of the Act as well as afford private relief to the individual employee instituting the complaint, an employment discrimination suit may be treated as a class action as to all forms of relief by any class member, and that relief should be available to all who were damaged by the unlawful employment practice regardless of whether they filed charges with the Equal Employment Opportunity Commission. Sprogis v. United Air Lines, Inc., supra; Bowe v. Colgate-Palmolive Co., supra. Although the class of persons represented by plaintiffs here is very small — there were only five individuals employed by McDonnell Douglas in this special program, and the three who were terminated are represented as plaintiffs in this suit — the holdings of these cases require that even if Loughrey had filed no charge before the Commission, he should be permitted to maintain this action as a co-plaintiff on the same basis and with the same standing as the other plaintiffs who filed charges with the Commission. See Madlock v. Sardis Luggage Co., 302 F.Supp. 866 (N.D.Miss. 1969).

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 . . . ."

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.

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).

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 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...