Fired ‘tomboy’ can sue for sex discrimination
Here’s a tough call for an employer. You need to fill a position that involves a lot of face-to-face interaction with customers.
A subordinate recommends a candidate and you sign off on the hire sight unseen.
But when you eventually meet the new hire in person, you realize she doesn’t exactly fit the bill as far as being one of the faces of your organization.
You wanted a perky, Mary Tyler Moore type to charm the customers. Instead you find that the new hire is a tomboy who is sometimes mistaken for a man.
Must you live with what in your mind is a mistake? Or can you make a change without some jury socking you with a painful sex discrimination verdict?
According to a decision last week by the 8th Circuit, it might be best to just grit your teeth and bear it.
The tomboy of Heartland Inns
Heartland Inns operates a chain of hotels in Iowa. One of the hotels is located in Ankeny, a dusty crossroads outside Des Moines.
In December 2006, the Ankeny Heartland Inn had an opening at the front desk for the 7:00 am to 3:00 pm “A” shift.
The manager of the Ankeny hotel, Lori Stifel, thought she had the perfect candidate to fill the position. Brenna Lewis had worked part time for Heartland since 2005 and, by all accounts, had done a great job.
Stifel called headquarters to get permission to hire Lewis and Barbara Cullinan, Heartland’s Director of Operations, gave the thumbs up to offer Lewis a full time job as a guest service representative.
All was well until Cullinan showed up in Ankeny and got a look at Lewis.
Cullinan didn’t like what she saw.
You see, Heartland’s Director of Operations allegedly takes the view that being “pretty” and feminine-looking is a prerequisite for female employees who wish to work at the front desk.
Lewis doesn’t exactly fit that profile. She describes her appearance as “slightly more masculine.” Others at Heartland have said that Lewis has “an Ellen DeGeneres kind of look.”
Lewis at the time wore her hair short and prefers to go without makeup. Because she tends to wear loose fitting clothing, including men’s button down shirts and slacks, Lewis has been mistaken for a male and referred to as “tomboyish.”
All of this didn’t sit well with Cullinan. She allegedly told Stifel that Lewis was not a “good fit” for the front desk because she lacked that “Midwestern girl look.”
Rather than leaving well enough alone, Cullinan ordered Stifel to move Lewis to an overnight shift. When Stifel refused, Cullinan insisted that the hotel manager resign.
With Stifel out of the way, Cullinan turned her attention to Lewis.
First, the company issued a new directive that hiring for front desk positions required a second interview.
Next, Cullinan scheduled Lewis for another job interview.
Now, keep in mind that by this time Lewis had already been on the job for nearly a month, so she was understandably upset to suddenly find out that she had another hoop to jump through.
And it’s pretty clear that Lewis well understood which way the wind was blowing.
In any event, the interview with Cullinan didn’t go well and three days later Lewis was fired.
Heartland’s position is that Lewis was fired because she was insubordinate during the interview with Cullinan, exhibiting hostility toward the company’s new policies.
But it’s hard to imagine that someone at Heartland wasn’t savvy enough to realize that all this bumbling and stumbling wasn’t going to result in a lawsuit.
And sue Lewis did, claiming that Heartland violated Title VII by enforcing a de facto requirement that a female employee conform to gender stereotypes in order to work the A shift.
According to Lewis, this runs afoul of Price Waterhouse v. Hopkins, in which the Supreme Court decided that sex stereotyping can violate Title VII when it influences employment decisions.
Gender stereotyping
Last week, the 8th Circuit put in its two cents in the case, reversing a summary judgment in favor of Heartland.
The district court concluded that Lewis could not win because she could not show that she was treated differently than similarly situated males.
But the 8th Circuit said this was a mistaken view of Title VII.
The court observed that nothing in “Supreme Court precedents compel a woman alleging sex discrimination to prove that men were not subjected to the same challenged discriminatory conduct or to show that the discrimination affected anyone other than herself.”
Instead, the 8th Circuit said that “Lewis need only offer evidence that she was discriminated against because of her sex. The question is whether Cullinan’s requirements that Lewis be ‘pretty’ and have the ‘Midwestern girl look’ were because she is a woman. A reasonable fact finder could find that they were since the terms by their nature apply only to women.” (Lewis v. Heartland Inns of America)
What’s an employer to do?
This decision seems to create quite a dilemma for employers who wish to use physical appearance as a factor in making hiring decisions.
Chief Judge James B. Loken aptly summed up the problem in his dissent.
“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,” Loken wrote.
Loken said that this is a misreading of Price Waterhouse.
“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,” Loken wrote.
That seems to be the essence of the problem in this dispute between Lewis and Heartland Inns.
Here you have a female decision maker — Cullinan — who rightly or wrongly decided that Lewis’ appearance did not present the image that the company wished to present.
It seems pretty clear that Cullinan’s decision was not based on gender per se, but rather on her subjective assessment of Lewis’ appearance. The bet here is that Cullinan would make the same decision regarding an unattractive male hotel clerk who might not have that “fresh,’ chipper look about him.
As unsavory as we might view such a decision, shouldn’t that be the employer’s prerogative?
Or should we just go over the cliff, recognizing the “unattractive” as a protected class under employment discrimination law?
— Pat Murphy
patrick.murphy@lawyersusaonline.com
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