Earwood v. Continental Southeastern Lines, Inc.

WINTER, Circuit Judge

(dissenting);

While I agree with the majority that the district court’s judgment cannot be af *1352 firmed, I think the majority’s view of the applicable law is erroneous. Under the law, as I view it, the judgment of the district court should be vacated and the case remanded for further findings. If on remand the district court finds that the hair grooming regulations for male and female bus drivers substantially differ, I would reinstate the judgment. I therefore respectfully dissent.

I.

Assuming that Continental’s male bus drivers must have short hair and that female bus drivers may have long hair, the majority says, in effect, that the Act was not violated so long as the hair length regulation was not adopted as a pretext to exclude either sex from employment. This result is reached on the theory that Title VII proscribes discrimination based only on immutable sex characteristics or constitutionally protected activities. Discrimination based on factors of personal preference, of which hair length is treated as one, in the view of the majority does not necessarily restrict employment and is not proscribed.

While I concede that the view of the majority has a measure of support in the decisions of other circuits, it is not a view to which I subscribe. 1 The majority’s view is directly contrary to the plain language of the statute and is unsupported by its legislative history. In pertinent part, 42 U.S.C. § 2000e-2 provides:

(a) It shall be an unlawful employment practice for an employer—

(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin .

Grooming standards are clearly “terms, conditions, or privileges of employment.” Thus, an employer may not vary grooming regulations because of an individual’s sex. In the absence of any authoritative legislative history indicating a contrary conclusion, I would inquire no further. I reject the notion that the regulation is valid because it is based on a combination of sex and a facially neutral factor, i. e., length of hair. To me, it is manifest that the length of hair is significant only with respect to men and that therefore the regulation discriminates on the basis of sex. The fact that all males do not prefer to wear their hair long is an irrelevancy under the statute.

The vice in the majority’s approach is that it imports constitutional notions of immutability and fundamentally into the process of statutory interpretation. I can find no warrant for concluding that in enacting Title VII, Congress intended to proscribe only sex discrimination which burdens persons who desire to exercise “fundamental rights” or who possess certain “immutable characteristics.” 2 In the absence *1353 of any suggestion that Congress has transgressed constitutional limitations on its powers, nothing other than putative congressional intent supports the importation of these constitutional doctrines into the process of statutory construction. If any gloss on the crystalline clarity of the statute is required, it is supplied by Phillips v. Martin Marietta Corp., 400 U.S. 542 , 90 S.Ct. 496 , 27 L.Ed.2d 613 (1971) (per curiam), where the Court held that an employer’s policy of hiring men, but not women, with pre-school-aged children, would constitute sex discrimination in violation of the Act, if not justifiable as a bona fide occupational qualification. Phillips supports my view. That this is the reading to be afforded Phillips follows from the facts that (a) in the present state of medical knowledge, parenthood is a matter of choice and not an immutable status, and (b) there is no fundamental right not to be excluded from a particular job on account of parenthood.

II.

But I do not think that the case is ripe for final adjudication. Plaintiff was discharged for failure to comply with his employer’s hair grooming regulation applicable to bus drivers, and at the time he was discharged all bus drivers were male. As the majority notes, no claim is advanced that driver positions were not open to women. Indeed, women had held driver positions in the past, and one woman was being trained for a driver position at the time of trial.

The record is far from clear, however, whether Continental would treat male and female bus drivers differently with respect to the length of their hair. The district court made no findings in this regard. Briefly stated, the record shows that, according to the testimony of the transportation director and an intra-company memorandum which he wrote, plaintiff might have complied with the regulation by securing his hair up under his hat. The transportation director testified that women drivers would be permitted to satisfy the grooming regulation by wearing their hair in an “upsweep” or “bun,” so that it would not fall over their ears or collar. On the other hand, the letter in which plaintiff was informed that his hair length was unacceptable told him that he “needed a haircut” and advised him that his hair “must be cut in such a manner to be in compliance with Company regulations . . . ” (emphasis added). The regulation itself prescribes a “trim” haircut — a word suggesting shortness.

Thus, the record is susceptible to contrary inferences on the question of whether plaintiff could have satisfied Continental’s regulations other than by “cutting” his hair. I would therefore remand the ease to the district court, to make findings both as to what plaintiff would have been required to do to avoid being discharged and what a female bus driver would have been required to do in like circumstances. If it is found that plaintiff need only to have secured his hair but not to cut it, defendant should be given judgment. If it is found that plaintiff was required to cut his hair but a female bus driver would not have been required to cut her hair, the original judgment should be reinstated.

. My comment is, of course, restricted to the thrust of 42 U.S.C. § 2000e-2(a)(l). I do not foreclose the theoretical possibility that hair length may constitute a “bona fide occupational qualification reasonably necessary to the normal operation of [a bus] business or enterprise,” within the meaning of 42 U.S.C. § 2000e-2(e). But I do not consider the latter, since defendant makes no claim that its hair length regulation so qualifies.

. A regulation which would not impugn “immutable” or “fundamental” rights, but which would probably be invalid under Title VII, can be posited: A regulation which requires male, but not female, employees of the same category to reside within a specified distance of their place of employment would probably be invalid even though there is no “fundamental” right to dwell at a location distant from one’s job, McCarthy v. Philadelphia Civil Service Comm., 424 U.S. 645 , 96 S.Ct. 1154 , 47 L.Ed.2d 366 (1976) (per curiam), and residence is not immutable. I think that such a regulation would be invalid because it was so transparently based on sex.

I call attention also to the fact that, in this circuit, the length of one’s hair in many circumstances is a constitutionally protected right. Massie v. Henry, 455 F.2d 779 (4 Cir. 1972). A government employer can abridge it only for overriding governmental reasons. Kelley v. Johnson, 425 U.S. 238 , 96 S.Ct. 1440 , 47 L.Ed.2d 708 (1976).