The Eighth Circuit joins other U.S. Courts of Appeals that have ruled on claims that an employer violated Title VII by imposing a sex-stereotyped stigma on a protected employee — here, taking away a front-desk clerk’s daytime hours because she supposedly dressed like Ellen DeGeneres and lacked the “Midwestern girl look.” Summary judgment is reversed, on a 2-1 vote, and the case is remanded for trial.
Lewis v. Heartland Inns of America, L.L.C., No. 08-3860 (8th Cir. Jan. 21, 2010): Previously, the Ninth, Seventh, and Sixth Circuits and (most recently) the Third Circuit (Prowel v. Wise Business Forms, Inc., 579 F.3d 285 (3d Cir. 2009)) have had occasion to rule on claims that an employer discriminated against (or tolerated harassment of) employees whose dress and behavior did not conform to a gender stereotype of feminity or masculinity. All of these courts recognized such a claim under Title VII or parallel state laws, all riffing off of the plurality decision in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).
The Eighth Circuit joins this group in what sounds to be a sympathetic case. The employee, Ms. Lewis, manned the front desk at a chain motel. Her performance, it was undisputed, was excellent, yet with a change of director came an dawning awareness that Ms. Lewis was not a conventionally feminine dresser: “Lewis describes her own appearance as ‘slightly more masculine,’ and [Lewis’s manager] Stifel has characterized it as “an Ellen DeGeneres kind of look.” Lewis prefers to wear loose fitting clothing, including men’s button down shirts and slacks. She avoids makeup and wore her hair short at the time. Lewis has been mistaken for a male and referred to as ‘tomboyish.'”
The new director, Ms. Cullinan, agitated for Ms. Lewis’s replacement in the daytime shifts. “As Cullinan expressed it, Lewis lacked the ‘Midwestern girl look.’ Cullinan was heard to boast about the appearance of women staff members and had indicated that Heartland staff should be ‘pretty,’ a quality she considered especially important for women working at the front desk. Cullinan also had advised a hotel manager not to hire a particular applicant because she was not pretty enough.”
Cullinan determined to make current employees reinterview for their jobs. The record also included evidence that Cullinan insisted that any interviews with front desk employees be videotaped, so that she could decide whether they met her standard for attractiveness. Lewis protested the reinterview process as discriminatory and illegal. After a tense period between Cullinan, Lewis and Stifel (who backed Lewis), Lewis was fired, supposedly for performance reasons. She brought suit under Title VII and Iowa state law
As the panel writes, “[t]he theory of her case is that the evidence shows Heartland enforced a de facto requirement that a female employee conform to gender stereotypes in order to work the A shift.” Although the district court decided the case on the erroneous ground that “a Title VII plaintiff [who is a woman] must produce evidence that she was treated differently than similarly situated males,” the panel majority quickly dispenses with that issue, and proceeds to analyze the substance of the claim. It holds that Title VII protects against adverse actions motivated by sex stereotyping, citing similar decisions in other circuits. It also holds that the record betrayed the pretextual nature of the employer’s reasons for firing Ms. Lewis:
“Evidence that Heartland’s reason for the termination were pretextual include the fact that Lewis had a history of good performance at Heartland. She had no prior disciplinary record and had received two merit based pay raises. The two individuals who supervised her during the majority of her employment at Heartland both stated that they had no problem with her appearance, and at least one customer had never seen customer service like that Lewis had provided. On this record, a factfinder could infer a discriminatory motive in Heartland’s actions to remove Lewis.”
The panel majority also remands a follow-on claim for retaliation, for Lewis’s opposition to the interview process.
In dissent, Chief Judge Loken writes: “Apparently, the majority would hold that an employer violates Title VII if it declines to hire a female cheerleader because she is not pretty enough, or a male fashion model because he is not handsome enough, unless the employer proves the affirmative defense that physical appearance is a bona fide occupational qualification. Like the district court, I conclude this is an unwarranted misreading of the plurality and concurring opinions in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). In my view, an employer’s decision to hire or fire based on a person’s physical appearance is not discrimination “because of . . . sex” unless it is a pretext for disadvantaging women candidates, as the trial court found in Price Waterhouse v. Hopkins. As there is no evidence of that here, I would affirm for the reasons stated in the district court’s persuasive and thorough Order on Motion for Summary Judgment dated November 13, 2008.”