Willingham v. Macon Tel. Pub. Co.
| Citation | 26 A.L.R.Fed. 1,507 F.2d 1084 |
| Decision Date | 12 February 1975 |
| Docket Number | No. 72-2078,72-2078 |
| Parties | 9 Fair Empl.Prac.Cas. 189, 26 A.L.R.Fed. 1, 9 Empl. Prac. Dec. P 9957 Alan WILLINGHAM, Plaintiff-Appellant, v. MACON TELEGRAPH PUBLISHING COMPANY, Defendant-Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
Charles Marchman, Jr., Macon, Ga., Edward L. Baety, Field Atty., EEOC, Atlanta, Ga., for plaintiff-appellant.
James M. Simons, Austin, Tex., Charles L. Reischel, EEOC, Washington, D.C., Wayne S. Hyatt, Atlanta, Ga., amicus curiae, for Roger D. Gravette.
E. S. Sell, Jr., Macon, Ga., for defendant-appellee.
John Bacheller, Jr., Robert W. Ashmore, Atlanta, Ga., amicus curiae, for Rollins, Inc.
R. James George, Jr., Austin, Tex., amicus curiae, for Newspapers, Inc.
Appeal from the United States District Court for the Middle District of Georgia.
Before BROWN, Chief Judge, and TUTTLE, WISDOM, GEWIN, BELL, THORNBERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, DYER, SIMPSON, MORGAN, CLARK and RONEY, Circuit Judges.
Alan Willingham, plaintiff-appellant, applied for employment with defendant-appellee Macon Telegraph Publishing Co., Macon, Georgia (Macon Telegraph) as a display or copy layout artist on July 28, 1970. 1 Macon Telegraph refused to hire Willingham. The suit below alleged that the sole basis for refusal to hire was objection to the length of his hair. On July 30, 1970, he filed a complaint with the Equal Employment Opportunity Commission (E.E.O.C.), asserting discrimination by Macon in its hiring policy based on sex, and therefore in violation of Sec. 703(a), Civil Rights Act of 1964, Title 42, U.S.C., 2000e-2(a).
The E.E.O.C. investigated the alleged discrimination and eventually advised Willingham that there was reasonable cause to believe that Macon Telegraph had violated the cited portion of the Civil Rights Act of 1964, and that he was entitled to file suit. On December 17, 1971, Willingham filed suit, alleging inter alia that Macon Telegraph's hiring policy unlawfully discriminated on the basis of sex. On April 17, 1972, the district court granted summary judgment in favor of defendant Macon Telegraph, finding no unlawful discrimination. Willingham v. Macon Telegraph Publishing Co., M.D.Ga.1972, 352 F.Supp. 1018. Upon Willingham's appeal from the district court decision a panel of this circuit reversed, finding the presence of a prima facie case of sexual discrimination and directing remand for an evidentiary hearing Willingham v. Macon Telegraph Publishing Co., 5 Cir. 1973, 482 F.2d 535 (Simpson, Circuit Judge, dissenting). Upon en banc consideration we vacate the remand order of the original panel and affirm the district court.
The factual background of this case is set forth in the district court opinion and in the majority and dissenting opinion of the original panel. There is no substantial dispute between the parties as to the facts the more important of which we repeat here for convenience. Willingham was 22 years of age when he applied for work with Macon Telegraph in late July, 1970. Shortly before, during the Fourth of July holidays, an 'International Pop Festival' was held at Byron, Georgia, a village about 15 miles from Macon. This event, attended by hundreds of thousands of young people, is described in footnote 3 to the dissenting opinion, 482 F.2d at 539:
( 3) The record shows that Macon community disapproval of long-haired males had been recently exacerbated by an 'Interantional Pop Festival' on July 3, 4, 5, 1970, at Byron, Georgia, a small community 15 miles from Macon. The crowds attracted to Byron were variously estimated at between 400,000 and 500,000 people. Bearded and longhaired youths and scantily dressed young women flooded the countryside. Use of drugs and marijuana was open. Complete nudity by both sexes, although not common was frequently observed. Of course the managing officials of the Macon Telegraph Publishing Company were peculiarly aware of community indignation over excesses during the Byron Pop Festival because of the wide publicity in its own daily newspaper. The appellee was entitled to consider that the business community of Macon, including its own advertisers, was particularly sour on youthful long-haired males at the time of Willingham's application of July 28, 1970. It was a fair inference on the part of company officials that advertisers would share an attitude not significantly different from that of the community in general.
In short, Macon Telegraph's management believed that the entire business community it served-and depended upon for business success-associated long hair on men with the counter-culture types who gained extensive unfavorable national and local exposure at the time of the festival. Therefore the newspaper's employee grooming code, which required employees (male and female) who came into contact with the public to be neatly dressed and groomed in accordance with the standards customarily accepted in the business community, was interpreted to exclude the employing of men (but not women) with long hair. Willingham's longer than acceptable shoulder length hair was thus the grooming code violation upon which Macon Telegraph based its denial of employment.
Willingham's complaint to the E.E.O.C. and his federal suit were both grounded upon Sec. 703 of the Civil Rights Act of 1964, Title 42, U.S.C. 2000e-2, which provides, in pertinent part, that:
(a) It shall be an unlawful employment practice for an 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 . . .; or (2) to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's . . . sex . . ..
Willingham's argument is that Macon Telegraph discriminates amongst employees based upon their sex, in that female employees can wear their hair any length they choose, while males must limit theirs to the length deemed acceptable by Macon Telegraph. He asserts therefore that he was denied employment because of his sex: were he a girl with identical length hair and comparable job qualifications, he (she) would have been employed. A Majority of the original panel which heard the case agreed, and remanded the cause to the district court for a finding of whether or not the discrimination might not be lawful under the 'bona fide occupational qualification' (B.F.O.Q.) statutory exception to Sec. 703. 2 Since we agree wiht the district court that Macon Telegraph's dress and grooming policy does not unlawfully discriminate on the basis of sex, the applicability of the B.F.O.Q. exception will not be considered in this opinion.
The unlawfulness vel non of employer practices with respect to the hiring and treatment of employees in the private sector, as contemplated by Sec. 703 and applied to the facts of this case, can be determined by way of a three step analysis: (1) has there been some form of discrimination, i.e., different treatment of similarly situated individuals; (2) was the discrimination based on sex; and (3) if there has been sexual discrimination, is it within the purview of the bona fide occupational qualification (BFOQ) exception and thus lawful? We conclude that the undisputed discrimination practiced by Macon Telegraph 3 is based not upon sex, but rather upon grooming standards, and thus outside the proscription of Sec. 703. This determination pretermits any discussion of whether, if sexual discrimination were involved, it would be within the BFOQ exception.
Although our judicial inquiry necessarily focuses upon the porper statutory construction to be accorded Sec. 703, it is helpful first to define narrowly the precise issue to be considered. For two reasons, we have no question here of whether or not due process or equal protection standards need be applied. Firstly, there is no state action present giving rise to a constitutional question, and secondly, no claim of deprivation of a constitutional right is advanced. Cf. Karr v. Schmidt, 5 Cir. 1972, 460 F.2d 609 (en banc) with Lansdale v. Tyler Junior College, 5 Cir. 1972, 470 F.2d 659 (en banc) (). Similarly, we are not concerned with discrimination based upon sex alone. That situation obtains when an employer refuses to hire, promote, or raise the wages of an individual solely because of sex, as, for instance, if Macon Telegraph had refused to hire any women for the job of copy layout artist because of their sex.
Willingham relies on a more subtle form of discrimination, one which courts and commentators have often characterized as 'sex plus'. 4 In general, this involves the classification of employees on the basis of sex plus one other ostensibly neutral characteristic. The practical effect of interpreting Sec. 703 to include this type of discrimination is to impose an equal protection gloss upon the statute, i.e. similarly situated individuals of either sex cannot be discriminated against vis a vis members of their own sex unless the same distinction is made with respect to those of the opposite sex. Such an interpretation may be necessary in order to counter some rather imaginative efforts by employers to circumvent Sec. 703.
Inclusion of 'sex plus' discrimination within the proscription of Sec. 703 has legitimate legislative and judicial underpinning. An amendment which would have added the word 'solely' to the bill, modifying 'sex', was defeated on the floor in the House of Representatives. 110 Cong.Rec. 2728 (1964). Presumably, Congress foresaw the debilitating effect such a limitation might have upon the sex discrimination amendment. Furthe...
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