Willingham v. Macon Telegraph Publishing Company

• Decision Date: 05 September 1973
• Docket Number: No. 72-2078.,72-2078.
• Citation: 482 F.2d 535
• Parties: Alan WILLINGHAM, Plaintiff-Appellant, v. MACON TELEGRAPH PUBLISHING COMPANY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

482 F.2d 535 (1973)

Alan WILLINGHAM, Plaintiff-Appellant, v. MACON TELEGRAPH PUBLISHING COMPANY, Defendant-Appellee.

No. 72-2078.

United States Court of Appeals, Fifth Circuit.

June 28, 1973.

Rehearing and Rehearing Granted September 5, 1973.

Charles R. Marchman, Jr., Macon, Ga., Edward L. Baety, Field Atty., EEOC, Atlanta, Ga., for plaintiff-appellant.

Charles L. Reischel, EEOC, Washington, D.C., Wayne S. Hyatt, Atlanta, Ga., for Roger D. Gravette, amicus curiae.

E. S. Sell, Jr., Macon, Ga., for defendant-appellee.

John Bacheller, Jr., Atlanta, Ga., for Rollins, Inc., amicus curiae.

Before TUTTLE, WISDOM and SIMPSON, Circuit Judges.

Rehearing and Rehearing En Banc Granted September 5, 1973.

WISDOM, Circuit Judge:

This case presents the question whether an employer's grooming code requiring male job applicants to adhere to a hair style different from that required of female job applicants constitutes sex discrimination in violation of section 703 of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2. The district court, 352 F.Supp. 1018, held that Title VII did not prohibit an employer from refusing to hire a male applicant because of his hair length while at the same time not imposing similar limits on the hair length of female applicants. We reverse and remand.

I.

Alan Willingham, the plaintiff-appellant, is a twenty-two year old white male and an artist by trade. On July 28, 1970, Willingham applied for the position of display or layout artist in the retail advertising department of the Macon Telegraph Publishing Company, a newspaper publishing company in Macon, Georgia. Willingham contended that he was qualified for the position because he had passed all tests administered to him by the company and had prior experience as a copy layout artist with two other companies. The company, however, refused to hire him.

On July 30, 1970, Willingham filed a complaint with the Equal Employment Opportunity Commission alleging that the company had violated section 703 of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2 by discriminating in employment on the basis of sex. Willingham asserted that the sole reason for the company's refusal to hire him for the position of layout artist was his shoulder length hair. Willingham argued that since the company imposed no restrictions on the hair length of female applicants, the company's action constituted sex discrimination. After investigating the complaint, the Commission found that there was reasonable cause to believe that the company had violated section 703 of the Act by refusing to hire the plaintiff. The Commission advised Willingham that he was entitled to file suit.

On December 17, 1971, Willingham initiated the present action in the district court and reiterated his contention that he had been the victim of sex discrimination in violation of section 703 of the Civil Rights Act of 1964 and the Civil Rights Act of 1870, 42 U.S.C. §§ 1981, 1983. The company responded by filing a motion to dismiss the complaint for failure to state a cause of action and attached affidavits to the motion. The company asserted that it required applicants for employment and employees who come in contact with the general public to be neatly dressed and groomed in accordance with the standards customarily accepted in the business community. The plaintiff's hair length, the company contended, would be offensive to the company advertisers and customers and would injure the company's business and good will in the community. Through various affidavits the company asserted that, at the time of Willingham's application, the community had been negatively influenced by a "pop festival" in the area attended by several hundred thousand long haired individuals. The company further argued that its action in refusing to hire Willingham did not constitute sex discrimination.

The district court treated the company's motion to dismiss as one for summary judgment and granted time to allow both parties to submit additional affidavits and other supporting evidence. Willingham then filed a motion for partial summary judgment.

On April 17, 1972, the district court rendered its decision granting summary judgment in favor of the company. The court held that even if all the allegations in the plaintiff's complaint were taken as true, the company was entitled to judgment as a matter of law since the Civil Rights Acts were not intended to deprive employers of their "fundamental right ... to proscribe reasonable grooming standards which take cognizance of societal mores." The plaintiff appealed in forma pauperis.

II.

The principal issue on appeal is whether the company's grooming code for hair length constitutes sex discrimination in violation of section 703 of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2.¹ Section 703 provides, in pertinent part:

(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 ... 42 U.S.C. § 2000e-2.

The company contends that its grooming code does not discriminate on the basis of sex because both sexes are treated equally: all applicants and employees are required to groom their hair according to the prevailing community standard. It is argued that the discrimination, if any, is between long and short haired males and not between males and females. We disagree.

In enacting section 703, Congress intended to insure equal access to the job market for both men and women. Diaz v. Pan American World Airways, Inc., 5 Cir.1971, 442 F.2d 385, cert. denied 404 U.S. 950, 92 S.Ct. 275, 30 L.Ed.2d 267. In essence, this means that "persons of like qualifications must be given employment opportunities irrespective of their sex". Phillips v. Martin Marietta Corp., 1971, 400 U.S. 542, 544, 91 S.Ct. 496, 27 L.Ed.2d 613. Section 703, therefore, is not limited to situations in which the employer's discriminatory employment practice is based solely on sex² but extends to all differences in the treatment of men and women resulting from sex stereotypes.³ Sprogis v. United Air Lines, 7 Cir.1971, 444 F.2d 1194, cert. denied 404 U.S. 991, 92 S.Ct. 536, 30 L.Ed.2d 543. An employment practice may be discriminatory even if it "adversely affects only a portion of the protected class." Id. at 1198. In Phillips v. Martin Marietta Corp., supra, for example, the Supreme Court held that the defendant company's policy of not accepting job applications from women with pre-school age children discriminated on the basis of sex. The Court stated that Title VII did not permit "one hiring policy for men and another for women — each having preschool age children." 400 U.S. at 544, 91 S.Ct. at 498. Similarly, in Sprogis v. United Air Lines, supra, the court held that an employer's rule requiring that stewardesses be unmarried, while the same policy was not applied to stewards, constituted sex discrimination in violation of Title VII. The court noted that section 703 was intended "to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes". 444 F.2d at 1198.

Applying this standard to the present case, we find that a grooming code requiring different hair lengths for male and female job applicants discriminates on the basis of sex within the meaning of section 703. Such a code treats applicants differently because of a sex stereotype: only males are prohibited from wearing their hair long. Section 703 does not permit one standard for men and another for women, where both are similarly situated. Other courts considering similar grooming codes have so held. See Aros v. McDonnell Douglas Corp., C.D.Cal. 1972, 348 F.Supp. 661; Donohue v. Shoe Corp. of America, Inc., and Retail Clerks Union, Local 324, C.D.Cal. 1972, 337 F.Supp. 1357; Roberts v. General Mills, Inc., N. D.Ohio 1971, 337 F.Supp. 1055; Rafford et al. v. Randle Eastern Ambulance Service, S.D.Fla. 1972, 348 F.Supp. 316, (dictum). Cf. Crews v. Cloncs, 7 Cir. 1970, 432 F.2d 1259. Contra Dodge v. Giant Foods, Inc., D.C.1971, 3 EPD ¶ 8184; Baker v. California Land Title Co., C.D.Cal. 1972, 349 F.Supp. 235; Boyce v. Safeway Stores, Inc., D.D.C. 1972, 351 F.Supp. 402.

The EEOC has also determined that a refusal to hire a male because of his hair length, when women who wear their hair at a similar length are hired, constitutes a violation of section 703. Decision No. 71-1529, 3 FEP Cases 1253; 29 C.F.R. § 1604.1(a). In general, its regulations provide that "so long as sex is a factor in the application of the employer's rule, such application involves a discrimination on the basis of sex." 29 C.F.R. § 1604.3(a). The EEOC's interpretation of the Act is entitled to great deference. See Griggs v. Duke Power Co., 1971, 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158; Diaz v. Pan American World Airways, Inc., supra.

Of course, it is possible that the company may justify its grooming code as a bona fide occupational qualification. See Weeks v. Southern Bell Telephone & Telegraph Co., 5 Cir.1969, 408 F.2d 228. The district court did not expressly consider this issue, which is a disputed issue of material fact that cannot be resolved on summary judgment. The district court's opinion and the appellee's briefs, however, are devoted in large part to the community's reaction to long hair, a matter more pertinent to the bfoq defense than the question whether there was discrimination. We therefore remand the cause for further consideration consistent with this opinion.

Reversed and remanded.

SIMPSON, Circuit Judge (dissenting):

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