Baker v. California Land Title Co.
| Decision Date | 04 December 1974 |
| Docket Number | No. 72-2568,72-2568 |
| Citation | 507 F.2d 895 |
| Parties | 8 Fair Empl.Prac.Cas. 1313, 8 Empl. Prac. Dec. P 9828 Robert E. BAKER, Plaintiff-Appellant, v. CALIFORNIA LAND TITLE COMPANY, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Joan T. Andersson (argued), of Andersson, Litt, Livezey, Lund & Taylor, Los Angeles, Cal., for plaintiff-appellant.
John W. Shenk (argued), of Tremaine, Shenk, Stroud & Roberts, Los Angeles, Cal., for defendant-appellee.
Before CARTER and TRASK, Circuit Judges, and NEILL, * District judge.
Baker appeals the dismissal of his complaint for failure to state a claim upon which relief can be granted. Jurisdiction in the district court for this civil rights action brought under Title VII of the Civil Rights Act of 1964 (Amended, Equal Employment Opportunity Act of 1972, Pub.L.No. 92-261, 86 Stat. 103) was based upon 42 U.S.C. 2000e-5(f)(3). The jurisdiction of this court is authorized by 28 U.S.C. 1291.
The district court's memorandum opinion is reported at 349 F.Supp. 235 (C.D.Cal.1972).
Appellant was discharged from the employ of appellee because of nonconformity with appellee's hair-length policy. Believing that the Company's tolerance of long hair for female employees and objection to the same length for males constituted sex discrimination within the purview of 42 U.S.C. 2000e-2(a), /1/ appellant initiated proceedings before the Equal Employment Opportunity Commission (EEOC). After exhausting his administrative remedies, appellant filed this suit.
The district court dismissed appellant's claim, and held that the varying hair-length policies did not 'discriminate' within the meaning of the statute. 349 F.Supp. at 238-289. In so finding, the court stated that the Act was never intended '. . . to interfere in the promulgation and enforcement of the general rules of employment, deemed essential by an employer, where the direct or indirect economic effect upon the employee was nominal or nonexistent.' Id. at 238.
We are not persuaded that tolerance of a certain hair length for female employees but not for males 'discriminates' on the basis of sex within the meaning of Title VII of the Civil Rights Act of 1964. It seems clear from a reading of the Act that Congress was not prompted to add 'sex' to Title VII on account of regulations by employers of dress or cosmetic or grooming practices which an employer might think his particular business required. The need which prompted this legislation was one to permit each individual to become employed and to continue in employment according to his or her job capabilities. 2Or to express it another way, Employment Discrimination and Title VII of the Civil Rights Act of 1964, 84 Harv.L.Rev. 1109, 1170 (1971).
Cases in the district court of the United States are split on the question of hair restrictions as a condition of employment. See Dilloff, Federal Court Litigation Over the Regulation of Adult Grooming, 38 Albany L.Rev. 387, 390 (1974). Likewise there is division among the district courts of this Circuit. Compare Baker v. California Land Title Co., 349 F.Supp. 235 (C.D.Cal.1972), with Donohue v. Shoe Corp. of America, Inc., 337 F.Supp. 1357 (C.D.Cal.1972).
The issue has also received attention by appellate courts. In Fagan v. National Cash Register Co., 157 U.S.App.D.C. 15, 481 F.2d 1115 (1973), the employer adopted a grooming standard for its male employees with which the appellant was required to conform on pain of losing his job. The district court dismissed his action under 42 U.S.C. 2000e-2(a) for failure to state a claim entitling him to relief. Much of the rationale of Fagan lends itself to a conclusion that the court was convinced that hair-length regulation does not constitute discrimination on account of sex within the meaning of Title VII. Thus the court reasoned that an employer may not adhere to practices which discriminate because of 'immutable' characteristics of race, national origin, color or sex. The maxim of expressio unius est exclusio alterius lends further credence to the view expressed in Fagan. Since race, national origin and color represent immutable characteristics, logic dictates that sex is used in the same sense rather than to indicate personal modes of dress or cosmetic effects. Because there was other discussion by that court justifying the regulation on the basis of employer needs, it may also be taken as authority for a holding limited to the exception for 'bona fide occupational qualification.' 42 U.S.C. 2000e-2(e). That uncertainty became moot, however, when the same circuit decided Dodge v. Giant Food, Inc., 488 F.2d 1333 (D.C.Cir. 1973). There the court, relying upon section 703 of the Civil Rights Act of 1964, 42 U.S.C. 2000e-2, faced the issue squarely and decided that hair-length regulation was not discrimination within the meaning of Title VII.
The Supreme Court in Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971), spoke in the same vein. The issue there was racial discrimination. Said the Court:
Id. at 429-430, 91 S.Ct. at 853.
Obviously, it seems to us, the Court was not talking in terms of hair styles or modes of dress over which the job applicant has complete control. The Court was addressing itself to characteristics which the applicant, otherwise qualified, had no power to alter.
The employment which was under consideration here was a job in the Title Company as a Title Clerk. Neither the Findings of Fact by the district court nor the record...
To continue reading
Request your trial
-
Gerdom v. Continental Airlines, Inc.
...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 ......
-
Board of Trustees of Bastrop Independent School Dist. v. Toungate
...Pac. R.R., 527 F.2d 1249 (8th Cir.1975); Willingham v. Macon Tel. Publ'g Co., 507 F.2d 1084 (5th Cir.1975); Baker v. California Land Title Co., 507 F.2d 895 (9th Cir.1974); Dodge v. Giant Food, Inc., 488 F.2d 1333 (D.C.Cir.1973); Fagan v. National Cash Register Co., 481 F.2d 1115 (D.C.Cir.1......
-
Bonham v. Dresser Industries, Inc.
...those favored and those not favored." Baker v. California Land Title Company, 349 F.Supp. 235, 238-39, (C.D.Cal.1972), aff'd. 507 F.2d 895 (9th Cir. 1974), cert. den. 422 U.S. 1046, 95 S.Ct. 2664, 45 L.Ed.2d 699 (1975). See also: Civil Rights Act of 1964, § 703(a)(1), 42 U.S.C. § ...
-
DeSantis v. Pacific Tel. & Tel. Co., Inc.
...between the qualifications for the job and the person's sex. Id. at 662-63 (footnotes omitted); See Baker v. California Land Title Co., 507 F.2d 895, 896 & n.2 (9th Cir. 1974), Cert. denied, 422 U.S. 1046, 95 S.Ct. 2664, 45 L.Ed.2d 699 (1975); Rosenfeld v. Southern Pacific Co., 444 F.2d 121......
-
The central mistake of sex discrimination law: the disaggregation of sex from gender.
...(8th Cir. 1975) (same), aff'g Wamsganz v. Missouri Pac. R.R., 391 F.Supp. 306, 307 (E.D. Mo. 1975); Baker v. California Land Title Co., 507 F.2d 895, 896 (9th Cir. 1974) (same), cert. denied, 422 U.S. 1046 (1975); Dodge v. Giant Food, Inc., 488 F.2d 1333, 1337 (D.C. Cir. 1973) (same); Thoma......
-
Legal protections for the "personal best" of each employee: Title VII's prohibition on sex discrimination, the legacy of Price Waterhouse v. Hopkins, and the prospect of ENDA.
...v. Safeway Stores Inc., 555 F.2d 753, 757 (9th Cir. 1977) (upholding a necktie requirement for males); Baker v. Cal. Land Title Co., 507 F.2d 895, 898 (9th Cir. 1974) (upholding a short hair requirement for males). In the years after Hopkins, the Ninth Circuit's principal appearance case, F......