Bedker v. Domino's Pizza, Inc.

• Decision Date: 08 September 1992
• Docket Number: Docket No. 126784
• Citation: 491 N.W.2d 275,195 Mich.App. 725
• Parties: Scott M. BEDKER, a minor, by His Next Friend, Robert Bedker, Plaintiff-Appellant, v. DOMINO'S PIZZA, INC., RPM Pizza, Inc., and Thomas Monaghan, jointly and severally, Defendants-Appellees.
• Court: Court of Appeal of Michigan — District of US

Page 275

491 N.W.2d 275

195 Mich.App. 725

Scott M. BEDKER, a minor, by His Next Friend, Robert Bedker Plaintiff-Appellant, v. DOMINO'S PIZZA, INC., RPM Pizza, Inc., and Thomas Monaghan jointly and severally, Defendants-Appellees.

Docket No. 126784.

Court of Appeals of Michigan.

Submitted May 21, 1992, at Detroit.

Decided Sept. 8, 1992, at 9:45 a.m.

Released for Publication Nov. 19, 1992.

Kelman, Loria, Downing, Schneider & Simpson by Michael L. Pitt, Detroit, for plaintiff-appellant.

Miller, Canfield, Paddock & Stone by David B. Gunsberg, Bloomfield Hills, for RPM Pizza, Inc.

Pear, Sperling, Eggan & Muskovitz, P.C. by Melvin J. Muskovitz and Francyne Stacey, Ann Arbor, for Domino's Pizza, Inc., and Thomas Monaghan.

Before MICHAEL J. KELLY, P.J., and MacKENZIE and BRENNAN, JJ.

BRENNAN, Judge.

Plaintiff appeals as of right from a March 8, 1990, order granting defendants summary disposition. Plaintiff filed suit alleging sex discrimination under the Civil Rights Act, M.C.L. Sec. 37.2101 et seq.; M.S.A. Sec. 3.548(101) et seq., after his employment was terminated because his hair fell below his shirt collar in violation of defendants' grooming policy. We affirm.

Plaintiff began working for RPM Pizza, Inc., a franchise of Domino's Pizza, Inc., in November 1986 as a counter person. At the time plaintiff was hired, RPM had in place a single grooming policy applicable to both males and females that provided:

Hair--there shall be no loose hair. All hair is to be restrained by a baseball cap or a hair net is required. Must be tucked under a hat so hair is not on forehead or visible from the front of the hat. Must be at or above the collar.

In order to comply with the policy, men with longer hair would tuck their hair into a cap. In January 1988, in order to comply with Domino's grooming policy, RPM announced that men would now have to cut their hair at or above the collar to be in compliance with RPM's grooming policy. Plaintiff's employment was terminated after he refused to cut his hair in compliance with the policy. A written version of the modified policy was distributed in March 1988.

Plaintiff subsequently filed this suit. Plaintiff's amended complaint alleged that defendants violated the Civil Rights Act when they applied their unisex grooming policy in a disparate manner by requiring only men to cut their hair at or above the collar. Defendants moved for summary disposition, arguing that RPM's policy was modified to provide for sex-specific grooming policies in conformance with Domino's policy and that there was no disparate treatment. The court granted defendants summary disposition, finding that defendants had in place sex-specific policies and that there was no evidence of disparate treatment with respect to enforcement of the sex-specific grooming policies. On appeal, plaintiff argues that the court erred in granting summary disposition because a question of fact existed whether RPM had in place a sex-neutral, rather than a sex-specific grooming policy that was applied in a disparate manner when plaintiff was fired. The court apparently granted summary disposition pursuant to MCR 2.116(C)(10). In deciding a motion brought under this subrule, the court must give the benefit of reasonable doubt to the nonmovant and determine whether a record might be developed that would leave open an issue upon which reasonable minds could differ. Werth v. Taylor, 190 Mich.App. 141, 145, 475 N.W.2d 426 (1991).

The issue whether a male-only hair-length grooming requirement constitutes sex discrimination has never been determined by a Michigan court pursuant to Michigan's Civil Rights Act. However, the issue has been addressed by federal courts in regard to title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e et seq. Michigan's Civil Rights Act is substantially the same as title VII with regard to its sex discrimination provisions. This Court has held that federal civil rights cases interpreting title VII are persuasive authority for resolving cases brought pursuant to the Michigan act. Northville Public Schools v. Civil Rights Comm., 118 Mich.App. 573, 576, 325 N.W.2d 497 (1982). A review of the federal case law reveals that it is irrelevant whether a sex-neutral or sex-specific policy is in effect. Federal courts have held that sex-differentiated hair-length grooming requirements do not constitute sex discrimination under title VII. See Fagan v. National Cash Register Co., 157 U.S.App.D.C. 15, 481 F.2d 1115 (1973); Dodge v. Giant Food, Inc., 160 U.S.App.D.C. 9, 488 F.2d 1333 (1973); Willingham v. Macon Telegraph Publishing Co., 507 F.2d 1084 (C.A. 5, 1975); Longo v. Carlisle DeCoppet & Co., 537 F.2d 685 (C.A. 2, 1976). ¹ The courts, for the most part, found that title VII protection does not encompass those characteristics not inherently immutable, such as different grooming standards for men and women. The courts reasoned that title VII was never intended to interfere with grooming policies that have no significant effect upon the employment opportunities afforded one sex in favor of the other. See cases cited above. See also 1 Larson, Employment Discrimination, Sec. 41.11, pp. 8-112--8-127. ²

Plaintiff misconstrues the disparate-treatment test in title VII cases. It is irrelevant whether defendants had a sex-specific grooming policy or a unisex grooming policy with an unwritten requirement that men wear their hair cut above the collar. Courts have held that such unwritten policies do not violate title VII. Miller v. Missouri P.R. Co., 410 F.Supp. 533 (W.D.Mo., 1976). Title VII may, however, be violated when the grooming code that applies to each sex is not equally burdensome or when the overall grooming code is not enforced in an evenhanded manner. Equal Employment Opportunity Commission Compliance Manual, Sec. 619, p. 3602, ³ Dodge, supra, 160...