Decisions from a number of courts over recent years have made it increasingly clear that ordinarily, nonconformity with sexual stereotypes can be an actionable basis for employment decisions. Most recently, the Eighth Circuit Court of Appeals, which covers the states of Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota and South Dakota, addressed the issue. The court reversed a summary judgment in favor of the employer Company and held that terminating an employee because her appearance failed to meet the "pretty", "Midwestern girl look" the employer valued constituted unlawful gender-based discrimination violative of Title VII. This 2010 case, Lewis v. Heartland Inns of America, L.L.C., 2010 WL 184087, offers something of a roadmap for appearance requirements.

The Facts of the Lewis Case

The plaintiff was a woman who worked for a Company ("Company") initially as a night auditor/desk clerk in one location, then as a part-time desk clerk position at two hotels in another location, and ultimately in a promoted position of full-time desk clerk on the day or "A" shift.  The plaintiff worked over a period of one and half years with no customer complaints or disciplinary actions.

The claims of gender-based discrimination and retaliation for having opposed discriminatory actions arose out of the plaintiff's promotion to full-time desk clerk and subsequent events. Her direct supervisors at the two hotels where the plaintiff worked part-time valued her work, characterizing the plaintiff as making a "good impression" and doing a "great job." Without undergoing an interview, but with the telephonic permission of the director of operations (DOO), the plaintiff was offered a full-time position as a night auditor at one of the hotels by the manager there, Jennifer Headington, and as a desk clerk on the A shift at the other hotel by the manager there, Lori Stifel. The plaintiff accepted the day-shift position, trained with the person being replaced, and within the month took over the job.

Subsequently, the plaintiff was observed on duty at the front desk by the DOO who had responsibility for personnel decisions and reported directly to the general partner of the Company. The DOO commented to Stifel that the DOO was not sure the plaintiff was a "good fit" for the front desk job. A few days later the DOO called Stifel, again questioning the plaintiff's appearance. In the litigation, the plaintiff characterized her own appearance as "slightly more masculine," and Stifel said it was an "Ellen DeGeneres kind of look."

Gender-Based Stereotyping

Other comments by the DOO included one to manager Headington that the Company had taken "two steps back" by hiring the plaintiff as the replacement on the A shift. According to the DOO, the plaintiff lacked the "Midwestern girl look." The DOO had been heard to boast about the appearance of women staff members and had indicated the staff should be "pretty," which she thought was particularly important for the front desk position.

Nothing was mentioned about appearance in the job description for the front desk position. Rather, the "guest service representative" should "create a warm, inviting atmosphere"and perform tasks such as relaying information and receiving reservations."

The Plot Thickens

In the telephone conversation between the DOO and Stifel, the DOO ordered Stifel to move the plaintiff back to the night shift position. Stifel refused because the plaintiff had been doing "a phenomenal job at the front desk." A week later, the DOO forced Stifel to resign. Around the same time, the Company informed managers that hiring for the front desk position would require a second interview. Further, video equipment was installed so that the DOO or the director of human resources could see applicants before they were extended offers. When Headington questioned the new arrangements, the DOO responded that "hotels have to have a certain personification and appearance."

Subsequent to Stifel's resignation and after the plaintiff had been on the new job for about a month without a record of any customer complaints, the DOO met with the plaintiff, telling her she would need a second interview to "confirm/endorse" her A shift position. Stifel had made the plaintiff aware of what had been said about her appearance, and the plaintiff protested that other staff had not been required to have second interviews for the job. The plaintiff told the DOO she believed the second interview was being required only because she lacked the "Midwestern girl look." She questioned the lawfulness of the interview and cried throughout the meeting. 

Evidence of Pretext

The DOO wanted to know who had told the plaintiff about the comment and asked if it had been Stifel. The DOO then talked about the need for new managers when revenue is down as in the location where Stifel had been the manager. The plaintiff responded that recent policy changes by the Company, such as banning smoking and pets, might explain the loss in revenue. After those comments, the DOO encouraged the plaintiff to share more of her views about the new policies and took notes of what the plaintiff said. Three days later, the plaintiff was fired. In the termination letter, the Company stated that the plaintiff "had thwarted the proposed interview procedure and exhibited hostility toward [the Company]'s most recent policies." In her claims, the plaintiff did not attack the Company's dress code, which imposes comparable standards of professional appearance on male and female staff members. Further, the termination letter did not cite any violation of the dress code. Rather, the theory of the plaintiff's case is that the evidence shows the Company enforced a de facto requirement that a female employee conform to gender stereotypes in order to work the A shift. The Company's written policies contained no such requirement. The plaintiff contended she was terminated for nonconformity with sex stereotypes and that this type of conduct violates Title VII of the 1964 Civil Rights Act.

Among other things, Title VII prohibits discrimination "with respect to [an individual's] compensation, terms conditions, or privileges of employment because of … sex." It also prohibits retaliation against the individual for having opposed discriminatory practices. Although articulated somewhat differently in the various circuit courts of appeal, essentially, the plaintiff in a Title VII case has to show she was a member of a protected class, was qualified to perform her job, suffered an adverse employment action, and the circumstances support at least an inference that there was discrimination. If this showing is made, as the court in Lewis said it had been, a presumption arises of unlawful discrimination, which requires the employer to produce a legitimate nondiscriminatory reason for its employment action. If such a reason is produced, the burden is on the plaintiff to show that the proffered reason, in Lewis¸ the thwarting of the new interview process and hostility toward new policies, is pretextual.

In holding that the plaintiff had offered sufficient evidence from which a reasonable jury or other factfinder could find that she was discriminated against because of her sex, the Eighth Circuit discussed a number of decisions from other courts, including the U.S. Supreme Court. A brief discussion follows of the major holdings of these cases as they relate to the question of nonconformity with gender-based stereotypes.

Other Courts Have Holdings Similar to Lewis

A U.S. Supreme Court decision commonly referred to as the Price Waterhouse case indicated that sexual stereotyping can violate Title VII when it influences employment decisions. In that case, a female senior manager was denied partnership, and partners involved in that decision had referred to the plaintiff as "macho" and in need of "a course at charm school." She was advised to walk, talk and dress more femininely, "wear make-up, have her hair styled, and wear jewelry." As the court in Lewis observed, "such stereotypical attitudes violate Title VII if they lead to an adverse employment decision."

Other courts such as a federal district court in New York, the Seventh Circuit, and the federal trial court in the District of Columbia have respectively held that Title VII is violated where, for example, a female lobby attendant was terminated for refusing to wear a sexually provocative uniform, where only women employees were compelled to wear uniforms, and where only female flight attendants were required to wear contact lenses rather than eyeglasses. In the Sixth Circuit, which includes the state of Tennessee, the court has upheld a Title VII claim based on sex stereotyping in a gender identification case involving a firefighter. The firefighter was born male but subsequently came to identify himself as a woman. When he began "to express a more feminine appearance" at work, he was told he was not "masculine enough." A plan was devised by his superiors to terminate him, including ordering him to submit to multiple psychological evaluations. If he did not consent to the evaluations, he could be terminated for insubordination.

In a case from the First Circuit upholding application of Title VII in a sex stereotyping claim, the court found a decision maker's explanation of why the plaintiff had not received a promotion evidence that the decision was motivated by an illegal sex stereotype that women would prioritize child care responsibilities over paid employment (with four young children, she had "too much on her plate."). In the Second Circuit, the court concluded that the statement that a mother who received tenure "would not show the same level of commitment she had shown because she had little ones at home" showed discriminatory intent in the tenure decision. The

Seventh Circuit has found probative of sex discrimination the statement about the conduct of a female employee, "You're being a blonde again today."

According to the Eighth Circuit in Lewis, one of the reasons the trial court had been mistaken in granting summary judgment to the Company was the erroneous view that the plaintiff had to produce evidence that she was treated differently from similarly situated males.

No such showing was made in Lewis; rather, the plaintiff claimed that she individually was treated in a discriminatory manner "because of " her sex. However, such comparative evidence is the only way to establish an inference of discrimination. Other types of evidence include "remarks of the employer that reflect a discriminatory attitude."

A leading gender-based discrimination case from the U.S. Supreme Court includes a statement by the Court that "the critical issue" in a sex discrimination case is "whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed." In that case, Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998), the plaintiff Oncale was part of an eight-member ship crew composed solely of males. Oncale could not show any female crew was treated differently because there were none.  Nontheless, evidence that he had been sexually harassed was sufficient to support his Title VII claim because the harassment was because of his sex. In the Lewis case, the question is whether the DOO's requirement that the plaintiff be "pretty" and have the "Midwestern girl look" was because she is a woman. If so, Title VII was violated. To determine if that is so, the case was reversed and remanded to the federal trial court in Iowa for trial.

Where the Company Went Wrong

When the case was appealed to the Eighth Circuit, the Company failed to maintain the summary judgment it won at the trial court level because of a variety of reasons related to the facts. The plaintiff showed the Company relied on her gender in making the termination decision because the remarks about prettiness and Midwestern looks were not stray. They were made by the DOO, a key decision maker. Others participated in the decision, but they relied on how the DOO characterized the meeting the DOO had with the plaintiff. Further, the DOO "consistently indicated" that the women front desk workers must be "pretty." The DOO criticized the plaintiff's lack of “Midwestern girl look" in the same conversation in which she insisted Stifel move the plaintiff to the night shift. The DOO orally authorized Stifel in a telephone conversation to hire the plaintiff, but once she saw the plaintiff's "tomboyish" appearance, the DOO demanded a "confirm/endorse" interview, and she demanded Stifel's resignation after Stifel refused to remove the plaintiff from the A shift position.

The Company's decision to fire the plaintiff was pretextual in that the plaintiff had a good performance history with the Company; she had no previous discipline, and she had received two merit pay increases. The two people who supervised her during the majority of her employment with the Company both stated they had no problems with the plaintiff's appearance, and at least one customer stated he had never seen customer service like what the plaintiff had provided.

Although the plaintiff offered no evidence that others similarly situated were treated differently, that was not the only way she could survive the summary judgment and get a jury trial. The objectively reasonable jury could disbelieve the Company's proffered reason for terminating the plaintiff. For example, not too long after the DOO's conversation with Stifel about the plaintiff's appearance, video cameras appeared to that the DOO, among others, could inspect the look of a front desk clerk before hiring her. Also, the termination letter to the plaintiff did not mention poor performance; only later did the Company so argue. Finally, the Company did not follow its own written termination procedure which includes assessing the employee's previous disciplinary record and conducting an investigation before making the termination decision. The

Human Resource Director ("HR Director"), who was responsible for directing investigations of discrimination, knew the plaintiff had complained the DOO's requirements were illegal, but the HR Director relied on the DOO's account of the meeting with the plaintiff (which was sharply contested by the plaintiff's version) without asking plaintiff for her own account of the meeting.

Not Just Discrimination; Retaliation, Too

Not only was the case remanded for a trial on the question of gender-based discrimination, but the plaintiff's retaliation claim in Lewis was revived too. The plaintiff did not have to prove the merits of her sex discrimination claim in order to pursue the retaliation claim.  It is enough if she has a reasonable, good faith belief that there were grounds for a claim of discrimination. Further, the DOO herself testified that in her meeting with the plaintiff, the latter "emphatically stated she thought it was illegal for us to ask her to interview, and illegal for us to schedule her to another shift." As to the required causal nexus between the adverse employment action and the protected activity the plaintiff engaged in, another element of a retaliation claim, the facts that she received a termination notice only three days after the meeting with the DOO and her stated belief that it was illegal for the Company to schedule the plaintiff for the night shift were characterized as sufficient by the Eighth Circuit, entitling the plaintiff to a trial on the merits of the retaliation claim as well.

What Are the Lessons From the Cases Discussed?

The hotel chain in the Lewis case did not argue that the “Midwestern girl look” or “prettiness” was a bona fide occupational qualification for the desk clerk job; that would not have been a successful basis for the adverse employment action taken. Courts have held that “female sex appeal” is not a bona fide occupational qualification for flight attendants and ticket agents, for example. The comments made by the DOO to the hotel manager about the clerk’s appearance were quite unlikely to be viewed by a court as stray remarks which could be ignored by the court at the summary judgment stage. This is so because to be stray, the remarks have to be made by nondecisionmakers, or if they are made by decisionmakers, the remarks must be unrelated to the decisional process itself. That was clearly not the situation in Lewis. Further, the plaintiff had no record of any disciplinary actions or complaints by customers. One might argue that if appearance were the issue the DOO chose to make it, customers would have complained.

The timing of the installation of video cameras in the front desk area and the change in the policy requiring a second interview before the promotional offer was made were seen by the court as underscoring the arguably pretextual nature of the reasons cited for the plaintiff’s termination. Indeed, the course of events in the meeting between the DOO and the plaintiff seemed to support the court’s determination that a factual dispute existed warranting a full trial.

While the DOO viewed the plaintiff’s comments about new policies and decreased revenue as exhibiting hostility, the court characterized it as the DOO encouraging the plaintiff to share more of her views about new policies and then firing her three days later. Ultimately, decisions about the terms and conditions of an individual’s employment should be based on job-related criteria that are supported by business necessity. Contrived reasons and decisions and comments based on stereotyping, whether gender-related or related to some other protected classification, can lead to costly litigation in which the likelihood of the employer prevailing is substantially reduced.