Female Employee Can Proceed With Sex Bias Claim Based On Sex Stereotypes

by Steve Bogue

Bogue, A. Stevenson
(402) 341-3070

The normal method of proof in a claim of discrimination on the basis of sex is evidence which shows that members of the opposite sex who engaged in similar conduct or were similarly situated received more preferential treatment. A recent Eighth Circuit Court of Appeals case illustrated a different method of analysis for certain claims which did not depend upon comparison with male employees, but rather on comparison with sexual stereotypes directed at women.

The female plaintiff in Lewis v. Heartland Inns of America was a desk clerk. A female company executive complained that she lacked the pretty “Midwestern girl” appearance which she thought was appropriate for front desk employees. The plaintiff said she preferred to wear loose-fitting clothes, including men’s button down shirts and slacks.  She did not use makeup and kept her hair short. The executive first tried to transfer the plaintiff to a shift where she would have less contact with the public, describing her as an “Ellen DeGeneres” kind of tomboy. The desk clerk was later fired.

After the trial court dismissed the claim, the Eighth Circuit reversed and sent the case back for further hearing. The majority opinion noted that other circuits had upheld sex discrimination claims based on sex stereotyping of how men or women should look, dress, or act. It pointed out that those cases did not require that a female plaintiff alleging sex discrimination prove that men were not subjected to the same challenged discriminatory conduct.

The Court held that the question was whether the desk clerk was required to be “pretty” and have “Midwestern girl looks” because she was a woman. It concluded that a reasonable fact finder could come to that conclusion.

The Court concluded that an employer who discriminates against women because they do not wear dresses or makeup is engaging in sex discrimination because that discrimination would not occur but for stereotyping related to the victim’s sex.

The dissent took issue with that conclusion and stated that the majority opinion would seem to hold that an employer would violate Title VII if it declined to hire a female cheerleader because she was not pretty enough or a male fashion model because he was not handsome enough. The majority rejected that view, noting that the employer in this case did not claim that “prettiness” or “Midwestern girl look” was a bona fide occupational qualification for a dayshift desk clerk job.

The finding in this case should not be interpreted to mean that employers are required to tolerate any and all modes of dress. The Court simply held that a plaintiff may be able to prove discrimination by showing that the employer applied stereotypes of looks, hairstyles, or dress which it associated with one sex or the other. The bottom line would be whether the employer can relate the specific characteristics which led to its disciplinary action to legitimate, non-discriminatory needs of the business.

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