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Over the years. challenges to employer-mandated personal appearance policies on the basis of sex have met with little success. In a number of the early cases, for example, male employees argued that grooming standards prohibiting men from wearing long hair, while permitting female employees to do so, discriminated against them on the basis of their sex. Federal appellate courts addressing the issue, including this court, overwhelmingly determined that such policies do not violate Title VII because they discriminate on the basis of an employee’s appearance, not their sex. See e.g., Barker i. Taft Broad. Co., 549 F.2d 400. 401 (6th Cii. 1977): Eanood v. Continental Southeastern Lines, Inc., 539 F.2d 1349, 1351 (4th Cir. 1976): Knott v. Missouri Pac. Rv. Co., 527 F.2c1 1249. 1252 (8th Cir. 1975): Baker 1’. Cakfornia Land Title Co.. 507 F.2c1 895, 898 (9th Cir. 1974): Longo v. Carlisle Dc Coppet & Co., 537 F.2c1 685 (2d Cir. 1976): and Dodge v. Giant Food, Inc., 488 F.2d 1333. 1337 (D.C. Cir. 1973).

In Willingham v. Macoii Telegraph Publishing Co., 507 F.2d 1084 (5th Cir. 1975), for example. the employer had a grooming code that required both male and female employees who came into contact with the public to be neatly dressed and “groomed in accordance with the standards customarily accepted in the business community.” Id. at 1087. With regard to men. the employer interpreted this policy to mean that men could not wear their hair long. Id. A male job applicant who was denied employment pursuant to the policy alleged lie was discriminated against based on his sex because the employer allowed women to wear their hair long. Id.

Concluding that no discrimination occurred. the U.S. Court of Appeals for the Fifth Circuit observed that women also were subject to generally accepted dress and grooming standards. Id. at 1092. The Fifth Circuit further held that “distinctions in employment practices between men and women on the basis of something other than immutable or protected characteristics do not inhibit employment opportunity in violation of Sec. 703(a). Congress sought oniy to give all persons equal access to the job market, not to limit an employer’s right to exercise his informed judgment as to how best to run his shop.” Id.

This court anived at the same conclusion in Baker v. california Land Title Co., 507 F.2d 895, 898 (9th Cir. 1974), holding that "a private employer may require male employees to adhere to different modes of dress and grooming than those required of female employees" without violating Title VII. Rejecting a Title VII claim challenging an employer’s hair length policy as sex discriminatory, this court observed that the character of [the employee’s] sex does not seem to have been a detenent to his qualifications or he would not have obtained the job in the first place. It was his violation of the company grooming standards after his employment which appears to have caused his termination. not his sex.” Id. at 897-98.

Just a few years later, this court held in Fountain v. Safewav Stores, Inc., 555 F.2d 753 (9th (‘ir. 1977). that an employer did not violate Title VII by requiring male clerks to wear ties. Id. at 755. Fountain had argued that because Safeway relaxed dress standards applicable to women after they protested against the store’s skirt policy by allowing the women to wear pants to work, Safeway enforced its dress code unequally in violation of Title VII. Id. at 756. Rejecting Fountain’s argument. the court held Safeway did not treat the men and women unequally simply because it relaxed the women’s dress code standards in one respect. Rather, Safeway’s decision reflected “an effort to maintain dress and grooming regulations that are not overly burdensome to its employees yet still serve to extend an image to its customers which Safeway believes is beneficial to its business.” Id. The court further held that this business judgment may change over the rears. but may not necessarily change “at an even pace with respect to the sexes.” Id. Thus. the regulations for one sex may be relaxed without necessitating a corresponding relaxation of the regulations for the other sex. Id.


Discriminating against pregnant women discriminates on the basis of their actions, not their sex...