Petition — Talman Federal Savings & Loan Ass'n v. Carroll

Supreme Court brief1980

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; Supreme Court, U. Mj

——=FFL E D

| JAN 16 1980

‘

IN THE | MICHAEL RODAK, JR., CLERK

Supreme Court of the Gnited States

“ OCTOBER TERM, 1979

No. 79-1111

MARY M. CARROLL, ON BEHALF OF HERSELF AND ALL

| OTHERS SIMILARLY SITUATED,

Plaintiff-Respondent,

ast vs.

TALMAN FEDERAL SAVINGS AND LOAN

ASSOCIATION OF CHICAGO,

Defendant-Petitioner.

PETITION FOR WRIT OF CERTIORARI TO THE

: UNITED STATES COURT OF APPEALS FOR

THE SEVENTH CIRCUIT.

ROBERT A. DEANE, ;

STEPHEN L. RUFF, JR.,

WILLIAM B. WEIDENAAR,

RUFF AND GROTEFELD, LTD.,

One North LaSalle Street,

Chicago, Illinois 60602,

(312) 263-3890,

Counsel for Petitioner Talman Federal

| Savings and Loan of Chicago.

Gunthorp-Warren Printing Company, Chicago e Financial 6-6565

a | | —

TABLE OF CONTENTS.

| | PAGE

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PN aan Ns esi Ventccemenececesseestce 2

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gd reer rte rer y fea cers: pee 3

Statement of the Case ....... Fie ed’ HES Back ve oe ee 3

A. Nature of Litigation ..... Mis sus deneasenee 3

B. The Grooming and Dress Code ............. 5

C. The Career Ensembles ............ccccees

D. Reasons for Grooming and Dress Code ...... 8

el rrr errr rece 11

Reasons for Granting the Writ ..............--.-05- -12

I. The Court of Appeals Promulgated an Errone-

ous Standard for What Constitute [legal Sex

EE eRe Toe ale ae

A. Congressional Intent as to What Con-

stitutes Sex Discrimination ............

B. The Courts of Appeal of Seven Other Cir-

cuits Have Upheld Different Grooming and

Dress Standards for Man and Women ...

C. The Cases in the Other Circuits Are Not

Dilstingoishable 3.02.5 occ ee cede

II. The Court of Appeals Misunderstood and In-

correctly Interpreted the Uncontroverted

a ie ea ake bs Bb ac es Gb we sid p ASS

A. The Actual Nature of the Clothing Re-

quirements of the Grooming and Dress

RS oe ga Swick Sk Aw came wee wis oe 88

Ili. The Court of Appeals Decision Is Bad Judicial

Legislation and Bad Policy ......... ewes 24

SUR, ori craig 65 F pueeiaie & nw wks CURA Oe Gee's f Ser eres eee = |

Table of Appendices

Appendix A: Opinion of Court of Court of Appeals.. A-1

Appendix B: Opinion of District Court .......... A-22

Appendix C: Order of Court of Appeals of October

Sy SO 8 oho. cp sk HERO eee ES ee A-32

TABLE OF AUTHORITIES.

Cases.

Baker v. California Land Title Co., 507 F. 2d 895 (9th \

Ce WIG se A a ee 16, 18

Barker v. Taft Broadcasting Co., 549 F. 2d 400 (6th Cir.

ONS or ee ee ee oh hn I 18

Carroll v. Talman, 488 F.Supp. 79 (N.D. Ill. E.D.

gs Reet er Sa ent Shee ae eee aE ita el ee 2, 4, 19, 24

Carroll v. Talman, 604 F.2d 1028 (7th Cir. 1979)

PERT ees ote RET PRON, Or ee CREE ET 2, 4, 23, 24, 25

City of Los Angeles, Department of Water and Power v.

Manhart, 435 U.S. 702, 98 S. Ct. 1370, 55 L. Ed. 2d

Gr: SOeE Shia pant eedowee Bete. Thy LAS ark pee 20

Dodge v. Giant Food, Inc., 488 F.2d 1333, (Dist. Col.

Ce COTE er cu ek ee hae Wake ceases ee bi 18, 20

Earwood v. Continental Southeastern Lines, Inc., 539 F.

ee Se OE POTS i 5 ooo. oS Oki ocr bea 18

Fagan v. National Cash Register Company, 481 F. 2d 1115

CUR Soe Ce BT i. ec 17, 20

Fountain v. Safeway Stores, Inc., 555 F. 2d 753 (9th Cir.

Sp § RRO ES RR Oy rh a er as rar ear age 18

Furnco Construction Corp. v. Waters, 438 U.S. 567, 98

S. Ct. 2943, 57 L. Ed. 2d 957 (1978) ........ a4 ee. ae

General Electric Co. v. Gilbert, 429 U.S. 125, 97 S. Ct.

SR et tes A PD COTO) 6 5 oer cs 800 oh wee te 20-21

Griggs v. Duke Power Co., 401 U.S. 424, 91 S. Ct. 849,

28 L. Ed. 24-158 (1971) 2.2.20. 050. A RY ge ee 15-16

Knott v. Missouri Pacific Railroad Co., 527 F.2d 1249,

Rs EP Cee wk aks OE Seco wk hee bes 16-17

Laffey v. Northwest Airlines, Inc., 366 F.Supp. 763

(D. D.C. 1973), vacated and remanded in part and

affirmed in part, 185 U.S. App. D.C. 322, 567 F. 2d

429 (1976), certiorari den. 434 U.S. 1086, 98 S. Ct.

a, ee Sh OE TE sine a) capes vvekl cemoee 19-20

Longo v. Carlisle DeCoppet & Co., 537 F.2d 685 (2d

RO PR: ic OS EEE oo CAEN C Sha en we nee 18

Nashville Gas Co. v. Satty, 434 U.S. 136, 98 S. Ct. 347,

La Gee ee CADP ED os vce s oakabh otecaeen 20

Sprogis v. United Air Lines, Inc., 444 F.2d 1194 (7th

Gs MIPS ds Oc cus wees en ah Sew hen eee ee are 12-15

Willingham v. Macon Telegraph Publishing Co., 507 F. 2d

ROS CO CO FS oe 5 hs bie ee He ee ens he 15,17

Statutes

Se Sie Ga ORB Bbc cs 62 ris 86 SSeceCT ASI 2

42 U.S.C. § 2000e-2(a) et seq.

(Title: Vil, } FOG(a). oo... de vieet 3, 13, 16, 18-19, 20

42 U.S.C. § 2000e-2(a) (1)

(aes. VER, § TOS aRCA)). cs. vince an cee 13, 14, 18-19

IN THE

Supreme Court of the United States

OCTOBER TERM, 1979

No. ....

MARY M. CARROLL, ON BEHALF OF HERSELF AND ALL

OTHERS SIMILARLY SITUATED,

Plaintiff-Respondent,

VS.

TALMAN FEDERAL SAVINGS AND LOAN

ASSOCIATION OF CHICAGO,

Defendant-Petitioner.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE SEVENTH CIRCUIT. )

To the Honorable Chief Justice and Associate Justices of the

Supreme Court of the United States:

The Petitioner, Talman Federal Savings and Loan Associa-

tion of Chicago, the named defendant in the underlying action,

prays that a Writ of Certiorari issue to review the judgment of

the United States Court of Appeals for the Seventh Circuit

entered on October 18, 1979 denying a petition for rehearing

and suggestion for rehearing en banc of a judgment entered

August 21, 1979. That judgment reversed a February 28, 1978

judgment by the United States District Court for the Northern

District of Illinois, Eastern Division, which had granted sum-

mary judgment for Petitioner and dismissed the case.

OPINIONS BELOW.

The judgment, opinion and dissenting opinion of the United

States Court of Appeals for the Seventh Circuit, published at

604 F.2d 1028 (7th Cir. 1979) are reproduced as Appendix

(“App.”) A to this Petition. The judgment and opinion of the

United States District Court, entered February 28, 1978, grant-

ing summary judgment for Petitioner and dismissing the case,

which was reversed by the Court of Appeals, is reproduced as

App. B and is published at 488 F.Supp. 79 (N. D.E. D. Ill.

1978).

JURISDICTION. aD

The United States Court of Appeals for the Seventh Circuit

refused on October 18, 1979 to grant Petitioner’s petition for

rehearing and suggestion for rehearing en banc of the judgment

entered by a majority of a panel of that court reversing the

judgment of the United States District Court. The order of the

Court of Appeals is reproduced as App. C. This petition was

filed within 90 days of that date. This Court has jurisdication

to review the Court of Appeals’ judgment by Writ of Certiorari

pursuant to 28 U.S.C. § 1254.

QUESTION PRESENTED.

Whether an employer is guilty of illegal sex discrimination

against its women employees under the Equal Employment Op-

portunity Act because its grooming and dress code did not

make the same clothing requirements for men and women when

the undisputed evidence was that there was no actual adverse

impact on the employment opportunities, status, compensation,

terms, conditions or privileges of women or any individual

woman.

STATUTE INVOLVED.

This case involves the interpretation of the following provi-

sions:

1. Section 703(a) of the Equai Employment GBesty

Act, which is Title VII of the Civil Rights Act of 1964 (42

U.S.C. § 2000e-2(a)), which 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; or

(2) to limit, segregate, or classify his employees

or applicants for employment in any way which would

deprive or tend to deprive any individual of employ-

ment opportunities or otherwise adversely affect his

status as an employee, because of such individual’s

race, color, religion, sex, or national origin.

STATEMENT OF THE CASE.

A. Nature of the Litigation.

Piaintiff-Respondent, Mary M. Carroll, (“Carroll”), insti-

tuted an action against Defendant-Petitioner, Talman Federal

Savings and Loan Association of Chicago, (“Talman”) alleg-

ing that Talman’s written grooming and dress code discrimi-

nated against its women employees on the basis of sex in viola-

tion of the Equal Employment Opportunit¥ Act (Title VII of

the Civil Rights Act of 1964; 42 U.S.C. § 2000e ef seq.).

Carroll claimed to represent herself and all others similarly

situated and sought declaratory and injunctive relief and mone-

tary damages.

. Plaintiff filed a motion for summary judgment and Talman

filed a counter-motion for summary judgment based on the un-

disputed facts obtained from documents produced, written in-

terrogatory answers and deposition testimony obtained through

discovery. Neither party claimed, nor did the District Court

find, any disputed questions of material fact.

The District Court (the Honorable Joel M. Flaum, J udge,

presiding) granted Talman’s motion for summary judgment and

dismissed the action. The District Court’s written opinion was

published at 448 F. Supp. 79 (N. D. Ill. E. D. 1978).

Plaintiff appealed the District Court’s judgment. A majority

of a panel of the Court of Appeals for the Seventh Circuit re-

versed the District Court’s action and directed it to enter sum-

mary judgment for plaintiff and to afford her appropriate relief

based on her relief prayers. Talman filed a petition for rehearing

and suggestion for hearing en banc; that petition was denied.

The original opinion for the majority of the panel of the Court

of Appeals (by Cummings, J.) and a dissenting opinion (by

Pell, J.) were published at 604 F.2d 1028 (7th Cir. 1979).

Prior to the filing of her motion for summary judgment in

the District Court, Petitioner had filed a Motion for Class

Action Certification. Before that motion was ruled on both

parties filed their motions for summary judgment. Consequent-

ly, the class action issues were not dealt with and no issue con-

cerning them is raised here. ;

Although no issue concerning it was raised in the courts

below or is raised here, before the filing of her action in the

District Court, plaintiff had filed with the Equal Employment

Opportunity Commission (“EEOC”) a Charge of Discrimina-

tion. The charge alleged that Talman was engaged in sex dis-

crimination and this discrimination involved that women must

wear “a given uniform” while men are allowed to wear “the

jacket of their choice”.

Based on only informal discussions and communications with

the parties separately, the EEOC issued a “Determination” that

it had reasonable cause to believe the complainant’s allegation

was true. However, the EEOC further determined that it would

not bring a civil action against Talman but issued to complain-

ant a Notice of Right to Sue.

B. The Grooming and Dress Code.

Talman has for many years had a gréeming and dress code

which is applicable to all employees and officers, whether men

or women. That code, which is part of Talman’s Personnel

Policies Manual,’ presently provides:

Personal Appearance.

To present a pleasant and business-like appearance to our

customers at all times, the basic rules of personal cleanli-

ness and good grooming must be followed by all em-

ployees.

Women employees shall wear current career ensembles each

working day except the last Tuesday of each month or as

may be specified. ,

Men may wear either the customary business suits or a

combination of business-type sport jacket and pants. Ties

shall be worn by men.

During business hours and while in areas accessible to or

in view of customers, employees shall not remove their

suit jackets.

1. P. App. 113-114 “P. App.” references are to Plaintiff’s Ap-

pendix filed in the Court of Appeals. 7

Uniforms,

Career Ensembles-

Uniforms shall be furnished by TALMAN to all mainte-

nance, housekeeping, supply room, security staff, cooks

and parking lot attendants.

In the interim between regular uniform changes, TALMAN

shall secure and pay for all the necessary replacement

costs on all uniforms.

TALMAN shall pay the entire cost of one career ensemble

for all female employees who do not get a uniform. This

career ensemble cost is considered as income by Internal

Revenue Service and subject'to income tax.

A career ensemble is comprised of one jacket or vest and

one skirt or slacks.

Career ensembles become the property of the employee.

Therefore, employees are responsible for all cleaning,

maintenance and repairs required to present a pleasant and

business-like appearance.

The grooming and dress code, by its express terms, applies

to both male and female employees. Both are required to pre-

™ sent a pleasant and business-like appearance to customers at all

times. Both must follow the basic rules of personal cleanliness

and good grooming.

Clothing requirements apply to both men and women. The

women are required to wear current career ensembles and the >

men are required to wear either customary business suits or a

combination of business-type sport jacket and pants. Ties must

be worn by all men but not by women. Both men and women

may not remove their jackets during business hours and while

in areas accessible to or in view of customers.

The career ensembles referred to in the grooming and dress

code are eight different color-coordinated garments from which

the women employees individually choose their two-piece career

ensembles, These are selected by a Career Ensemble Committee

consisting of a cross-section of Talman’s women employees.”

That Committee also acts in an advisory capacity to Talman as

to the entire career ensemble program, suggests any needed

changes and recommends “guidelines” for implementation of

the program; it also receives suggestions about the program and

the career ensembles from any women employees.*

C. The Career Ensembles.

Career ensembles are worn by all women tellers and office

and managerial personnel, including the highest officers (senior

vice president, treasurer and senior investment officer).* The

only “uniforms” worn by any men or women employees are

quite different’ and are worn by only “maintenance, housekeep-

ing, supply room, security staff, cooks and parking lot atten-

dants” as well as couriers.®

A career ensemble consists of two pieces, a blazer or a jacket

or a tunic and a skirt or slacks. These basic pieces may be long

or short sleeved or sleeveless and belted or unbelted and include

different types of skirts.7 Each individual employee selects which

of these she wishes and different combinations may be worn

from day to day by each individual as she wishes.®

A Spring career ensemble and a Fall career ensemble are

furnished by Talman to each woman employee.® The colors and

styles change from season to season and year to year.

Talman pays the entire cost of one Spriug and one Fall

career ensemble for each woman employee. The career ensembles

2. P. App. 38, 39.

3. Supp. App. 20; P. App. 38, 39. “Supp. App.” references are

to the Supplemental Appendix filed in the Court of Appeals.

4. P. App. 30, 90.

5. P.“App. 54, 55.

6. P. App. 32, 54, 55, 114.

7. Supp. App. 1.

8. P. App. 43.

9. P. App. 109.

become the property of the employee and may be worn while

not at work.’°

The Career ensembles contain no name, insignia or color

identifying them with Talman and are entirely suitable for street

wear."! As a result the Internal Revenue Service considers the

wholesale cost of the career ensembles as income to the women

and Talman is compelled to withhold income tax on their

value.’ pe

With their career ensembles, each woman employee wears

other clothing entirely of her individual choice, consisting of

blouses, sweaters, scarfs, hosiery and shoes as weil as jewelry.’®

The appearance of the individual women employees is quite

varied as a result of the different combinations of career en-

sembles worn from day to day by the different women, and the

varied appearance of the different pieces of the ensembles, plus

the variety of other clothing worn with them by the individual

women.

A photograph of some of the varied career ensembles and

other clothing worn by the women appears in the opinion of

the Court of Appeals in Appendix A at page A4.

D. Reasons for Grooming and Dress Code.

Talman’s dress and grooming code was adopted for a number

of legitimate business reasons. Neat, clean personnel in business-

like attire is part of its public “image”. Efficient, courteous and

business-like service to the public has long been a primary and

effective competitive tool for Talman.’* It is important to Tal-

man because its competitors (other savings and loan associa-

10. P. App. 44, 114.

11. P. App. 36, 44, 114

12. P. App. 36, 114

13. P. App. 36-37, 115.

14. P. App. 42.

tions and financial institutions) offer nearly identical savings

accounts and loans.

The clothing requirements of Talman’s grooming and dress

code are an important part of its competitive measures because

it assures that its employees project an appropriate, businesslike

appearance.’® Many years’ experience with the career ensemble

requirements for the women employees has shown that they

contribute to Talman’s good relations with its customers and

its women employees.

The women employees overwhelmingly favor the career en-

sembles.'* Talman instituted the career ensembles requirements

at the request of its women in the winter of 1942 to reduce

expense of the women employees, to eliminate problems about

what constituted appropriate business attire for women em-

ployees and to assure that the women employees’ attire pre-

sented a businesslike appearance.’’ Talman has continued the

career ensembles for the same reasons as well as for the other

reasons for which it has a grooming and dress code."®

Overwhelming support for the career ensembles by the women

has continued through the years, as oral and written polls and

informal comments have shown.’® Respondent is the only woman

employee who has ever objected to the career ensembles and

refused to wear the career ensembles, and her action produced

antagonism toward her from other women employees.”°

Experience has shown Talman that it is more difficult to

define what is businesslike attire for women than it is for men

because the great diversity of women’s clothing, questions of

differing tastes and the existence of numerous borderline and

15. Supp. App. 14; P. App. 42.

16. P. App. 33, 40.

17. P, App. 30-31, 41-42; Supp. App. 6, 8.

18. Supp. App. 6-8, 9.

19. P. App. 31, 33, 40.

20. P. App. 38-39, 43; Supp. App. 12.

questionable attires.2" Because of this diversity Talman’s man-

agers face frequent difficult decisions over individual women

employee’s attire when the career ensembles are not worn. Be-

cause of the much lesser variation in men’s attire, such problems

rarely arise concerning the men employees’ clothing and when

they do the problems are readily resolved.??

Experience has shown that the career ensembles also improve

relations with the women employees because they reduce dif-

ficulties with individual women employees over what is appro-

priate and businesslike* and reduce controversies between em-

ployees and the managerial staff.** In fact, problems about ques-

tionable clothing of women employees are nearly eliminated

when the career ensembles are worn.”®

Talman has found that the career ensembles are superior in

achieving a businesslike appearance, to the public.”® On the last

Tuesday of each month (to permit cleaning) and traditionally

during Christmas week and a week in August women, employees

may wear any clothing they wish so long as it is appropriate

business attire; many women prefer to wear the career ensembles

then also.”” Experience has shown that most problems over

appropriate business attire occur during those periods.”®

Talman’s relations with its customers are improved by the

women’s career ensembles. Customers comment favorable on

the career ensembles and unfavorably on the days when they

are not worn, and there are fewer customer complaints about

women employees’ apparel on career ensemble days. The

21. P. App. 80, 82.

22. P. App. 35; Supp. App. 12-13.

23. Supp. App. 8, 10, 11, 13, 17-18.

24. Supp. App. 11, 17-18; P. App. 80, 82.

25. P. App. 80, 82; Supp. App. 11, 17.

26. Supp. App. 2-4.

27. P. App. 73-74; 40-41.

28. Supp. App. 10, 13.

29. Supp. App. 13-15, 17.

career ensembles reduce the problems of unbusinesslike appear-

ance to the public.*°

Experience has shown Talman that the career ensembles

better achieve a businesslike appearance than do any other dress

requirgpents.**

Talman’s grooming and dress code has nothing to do with

hiring, promotion, benefits, status, salary, seniority, training,

retirement, etc. Jn fact, 78.5% (523) of Talman’s 673 tellers

and office and managerial employees are women and only

21.5% (145) are men.*?

E. Respondent’s Status.

Respondent, who has always been only a part time employee

of Talman, was hired as a teller-trainee in 1973. She adhered

to the grooming and dress code until May 1976 when she re-

fused to continue to wear career ensembles.** She was then

suspended (but her insurance and seniority rights were con-

tinued by Talman) because her refusal to w@ar a career en-

semble detracted from the businesslike appearance which Talman

was attempting to establish and maintain at a new branch office

where she was employed. Her refusal to do so antagonized her

co-workers and distracted them and affected their performance

and morale.*

At respondent’s request, her suspension was lifted by Talman

and she returned to work as a part-time employee in May 1978.

She then adhered to the grooming and dress code, and wore

the career ensemble furnished by Talman until Talman sus-

pended enforcement of the career ensemble requirements of the

grooming and dress code upon the ruling of the Court of

Appeals.

30. Supp. App. 19.

31. Supp. App. 2-4.

32. P. App. 30.

33. P. App. 38-39; Supp. 12.

34. P. App. 29, 42-43.

Since suspension of enforcement of the career ensemble re-

quirements, Talman has encountered greater problems about its

women wearing unbusinesslike clothing although many of its

women employees have voluntarily continued to wear career

ensembles.

REASONS FOR GRANTING THE WRIT.

This Honorable Court should grant a Writ of Certiorari to

review and reverse the judgment of the Court of Appeals be-

cause that court has promulgated a standard for sex discrimi-

nation under the Equal Employment Opportunity Act which

makes illegal an employer’s treatment of its employees without

any actual adverse impact on any individual employee’s em-

ployment opportunities, status, compensation, terms, conditions

or privileges, despite earlier warnings by Mr. Justice (then

Judge Stevens) that such a standard was not intended by Con-

gress and is not the comparative standard of the Act. Sprogis

v. United Airlines, Inc., 444 F.2d 1194, 1205-6 (7th Cir.

1971).

The Court of Appeals’ holding based on this standard, is

contrary to the holdings of seven other Circuits concerning em-

ployer’s grooming and dress standards and will create confusion

and uncertainty among those subject to and those enforcing

the Act. That Court’s holding has attracted widespread intcrest

because many businesses have grooming and dress codes for

employees especially in the financial, food and health care fields.

THE COURT OF APPEALS PROMULGATED AN ERRONEOUS

STANDARD FOR WHAT CONSTITUTES ILLEGAL SEX

DISCRIMINATION.

The real grounds for the decision of the Court of Appeals

are not easy to analyze because they are diffused through the

opinion, are not succinctly articulated, and are the result of

the Court’s own standards rather than the statute’s standards.

While the Court professes to rely on the statutory standards

of Section 703(a)(1) of the Equal Employment Opportunity

Act, in fact the real basis for its decision is its ‘own standard

rather than the statutory standard specified by Congress.

Careful analysis of the Court’s Opinion discloses that the

basis for its decision is not the statutory standard of what is

the actual objective impact of Talman’s dress code requirements

on the employment opportunities, benefits and enjoyment or

conditions of employment of its female employees. Rather the

Court’s decision is based on its conclusion that Talman’s dress

code requirements are based on sexual stereotypes.

The Court's approach was early criticized by Mr. Justice

(then Judge) Stevens when he was sitting in the Seventh Cir-

cuit. In his dissent in Sprogis v. United Airlines Inc.,? Mr.

Justice Stevens pointed out the error of the standard which

was adopted by the majority of the Seventh Circuit in that

case. Mr. Justice Stevens noted that the majority opinion in

Sprogis written by Judge Cummings (who also wrote the major-

ity opinion in this case) adopted a test for discrimination that

was not intended by Congress. That erroneous test was whether

the employer’s regulation was an irrational impediment derived

1. The Equal Employment Opportunity Act (constituting Title

Vii of the Civil Rights Act of 1964) provides in Section 703 (a) (1):

a. It shall be an unlawful employment practice for an employ-

er—

(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; or

(2) to limit, segregate, or classify his employees or appli-

cants for employment in any way which would deprive

or tend to deprive any individual of employment op-

portunities or otherwise adversely affect his status as

an employee, because of such individual’s race, color,

religion, sex or national origin.

2. 444 F. 2d 1194 (7th Cir. 1971).

from a stereotyped attitude toward females.* The same mistaken

test was employed to decide this case.

In Sprogis Mr. Justice Stevens pointed out that the majority’s

test was in error because it did “not focus on-the impact” of

the employer’s rule “on the employment opportunities of the

members of one sex as opposed to the other”.* In Sprogis as

in this case, the majority purported to decide the case under

Section 703(a)(1) rather than Section 703(a)(2) of Title

VII. However, Mr. Justice Stevens pointed out that Section

703(a)(1) did not contain any guidelines for differentiating

between “irrational stereotypes” and reasonable requirements.

The correct standard was pointed out in Sprogis by Mr.

Justice Stevens who said:*

“... In the long run, I believe justice will be served and

the objectives of the legislation best accomplished by ap-

plying the simple comparative standard suggested by the

language of the statute. The benefits of an objective stan-

dard will be shared by those enforcing the statute and

those faced with problems of compliance.”

The serious error in the standard for sex discrimination

promulgated by the Court of Appeals is that the Court’s

standard does not focus, as the statutory language requires, on

the actual impact, or effect, of the employment practice on

the individual’s compensation, terms, conditions or privileges of

employment. Clearly Section 703(a)(1) specifies that for an

employer’s regulation to be illegal sex discrimination it must

“discriminate against any individual with respect to his com-

pensation, terms, conditions or privileges of employment.” In

short, the regulation must have an adverse impact on the em-

ployee’s “compensation, terms, conditions or privileges of em-

ployment” and be based on the individual’s race, color, religion,

sex or national origin.

3. 444 F. 2d at 1205.

4. 444 F. 2d at 1205.

5. 444 F. 2d at 1206.

In the Sprogis dissent Mr. Justice Stevens further pointed out

that before an employer’s rule or regulation can constitute even

a prima facie case of discrimination it must have “differential

impact on one of the classes of people protected by the Act.”®

As will be shown later in this Petition, Talman’s clothing regu-

lations clearly did not have such an impact on its female

employees.

A. Congressional Intent as to What Constitutes

Sex Discrimination.

Several courts have commented about the meager legislative

history regarding the addition of “sex” discrimination to Sec-

tion 703(a) and therefore the slim guidance for defining Con-

gressional intent as to what constitutes sex discrimination. As

was pointed out in Willingham v. Macon Telegraph Publishing

Company,’ the amendment adding “sex” was passed one day

before the House of Representatives approved Title VII of the

Civil Rights Act and nothing of import emerged from the

limited floor discussions. The Willingham court concluded that

based on the available evidence the intent of Congress was to

guarantee equal job opportunities for males and females.

This Court has recognized that the intent of Congress in

passing the Equal Employment Opportunity Act was to forbid

only those differences in treatment of men and women which

affect employment opportunities and erect employment barriers.

The Congressional intent was described by This Court in the

racial discrimination case of Griggs v. Duke Power Company,‘

as follows:

The objective of Congress in the enactment of Title VII

is plain from the language of the statute. /t was to achieve

equality of employment opportunities and to remove

6. 444 F. 2d at 1205.

7. 507 F. 2d 1084, 1090 (Sth Cir. 1975).

as * U.S. 424, 430-31, 91 S. Ct. 849, 953, 28 L. Ed 2d 158

1).

barriers that have operated in the past to favor an identi-

fiable group of white employees over other employees .. .

(Emphasis supplied )

Congress clearly never intended the Equal Employment Op-

portunity Act to forbid merely different treatment of men and

women by an employer which does not impair employment op-

portunties, benefits or enjoyments. This has been pointed out

by the Ninth Circuit in Baker v. California Land Title Com-

pany,® which, after quoting This Court in Griggs said:

Obviously, it seems to us, the court was not talking in

terms of hairstyles or modes of dress for which the job

applicant has complete control. The court was addressing

itself to characteristics which the applicant, otherwise

qualified, had no power to alter.”

Other Courts of Appeals have had no difficulty in applying the

statutory standard of Section 703(a) to mean that an employ-

ment practice, to be illegal, must result in some impairment of

employment status, benefits or opportunities of the effected

class or must in some way adversely impact their employment

terms, conditions, compensation, or privileges.

B. The Courts of Appeal of Seven Other Circuits Have

Upheld Different Grooming and Dress Standards for Men

and Women.

The Courts of Appeals for seven other Circuits in passing on

whether or not different grooming standards for men and women

employees violate Title VII have concluded that reasonable

differences in dress and grooming standards which have little

or no effect on employment opportunities do not constitute sex

discrimination. No Circuit, other than the Seventh Circuit in

this case, has held to the contrary.

In Knott v. Missouri Pacific Railroad Company, 527 F.2d

1249 (8th Cir. 1975) the railroad’s grooming standards re-

stricted hair length and style for male employees but no similar

9. 507 F. 2d 895, 897 (9th Cir. 1974).

regulations existed for female employees. The plaintiff, a male

switchman, was suspended indefinitely for failure to comply

with the standard, After reviewing the legislative history of Title

VI and the holdings of other courts, the Eighth Circuit con-

cluded (527 F.2d at 1252):

Defendant's hairlength requirement for male employees

is part of a comprehensive personal grooming code ap-

plicable to all employees. While no hair length restriction

is applicable to females, all employees must conform to

certain standards of dress. Where, as here, such policies

are reasonable and are imposed in an evenhanded manner

on all employees, slight differences in the appearance re-

quirements for males and females have only a negligable

effect on employment opportunities. There is no claim

that defendant has established its policy as a pretext to

exclude males from employment.

The Eighth Circuit made clear that the statutory standard for

what constitutes sex discrimination is whether difference in

treatment of men and women causes employment disadvantages

and not merely whether it is based upon sexual stereotypes

when it said (527 F. 2d at 1251):

The legislative history accompanying the passage of the

1972 amendments makes clear, however, that the primary

trust of the provision was to discard outmoded sex stereo-

types posing distinct employment disadvantages for one

sex. (Emphasis supplied)

The Knott court then concluded that minor differences in per-

sonal appearance regulations that reflect customary modes of

grooming do not constitute sex discrimination within the mean-

ing of Section 703(a) of the Equal Employment Opportunity

Act.

Similar conclusions were reached in Willingham v. Macon

Telegraph Publishing Company, 507 F.2d 1084 (Sth Cir.

1975) (refusal to hire a male solely because of objections to

his hair length); Fagan v. National Cash Register Company,

481 F.2d 1115 (Dist. Col. Cir. 1973) (male employee sus-

pended because his hair did not.conform to company require-

a0... aero

ments); Dodge v. Giant Food, Inc., 488 F.2d 1333 (Dist.

Col. Cir. 1973), (food store employer’s regulation against long

hair on male employees with no similar restriction on women’s

hair length); Baker v. California Land Title Company, 507

F. 2d 895 (9th Cir. 1974) (male employee’s refusal to conform

to employer’s hair length policy which tolerated long hair for

females but not the same length for males); Earwood v. Con-

tinental Southeastern Lines, Inc., 539 F.2d 1349 (4th Cir.

1976) (hair length regulations covering male bus drivers);

Barker v. Taft Broadcasting Company, 549 F.2d 400, (6th

Cir. 1977) and Longo v. Carlisle DeCoppet & Co., 537 F. 2d

685 (2d Cir. 1976) (discharge of male employee because his

hair length did not conform to a grooming code which man-

dated shorter hairlengths for men than for women).

That the cases on hair length and grooming were fully ap-

plicable to an employer’s clothing regulations was recognized in

Fountain v. Safeway Stores, Inc., 555 F.2d 753 (9th Cir.

1977). There a male employee alleged that his employer’s dress

regulation which required males to wear ties, but which did not

impose the same requirement upon females violated Title VII,

and therefore his discharge from employment for failure to

comply with the regulation was illegal. Citing the grooming

cases discussed above, the Ninth Circuit held that an employer

may promulgate different personal appearance regulations for

males and females and may enforce those regulations that it

believes its particular business requires. Therefore, the employer’s

different clothing requirements for males was legal.

C. The Cases in the Other Circuits Are Not Distinguishable.

The Court of Appeals in the Carroll Case erroneously at-

tempted to distinguish the cases on grooming and dress codes

in the seven other Circuits by declaring that the instant case

was brought under Section 703(a)(1) rather than Section 703

(a) (2). In fact, as careful analysis shows, all of. the cases in

the other Circuits were decided under both Sections 703 (a) (1)

and (a)(2) or under Title VII as a whole, which of course in-

cludes both sections. The cases in the seven other Circuits are

simply not distinguishable on such a ground. Hence fully ap-

plicable here are the conclusions of those cases that there must

be an impairment of job opportunities, benefits, or enjoyment

or some adverse impact on tne terms, conditions, compensation

or privileges of employment of individuals of one sex arising

from a different treatment of men and women by an employer

before there can be illegal sex discrimination.

To reach its erroneous conclusion to the contrary in the

instant case, the Court of Appeals relied heavily on two other

cases. The first such case was Laffey v. Northwest Airlines Inc.,

366 F. Supp. 763 (D. D.C. 1973), vacated and remanded in

part and affirmed in part, 185 U.S. App. D. C. 322, 567 F. 2d

429 (1976), certiorari denied, 434 U. S. 1086, 98 S. Ct. 1281,

51 L. Ed. 2d 792. Laffey involved issues substantially broader

than dress and grooming regulations. These issues included al-

leged discrimination in seniority, pay, and filling of job openings

between male and female employees. The issue in Laffey most

nearly comparable to the issue in the instant case involved the

employer’s rule that prohibited its female cabin attendants from

wearing eye glasses. The District Court in Laffey held that

this rule violated Section 703(a)(1) of the Act. That issue

was not involved in the appeal in Laffey but, the Court of

Appeals in the instant case speculated that had if it had been,

the District Court’s decision would have been affirmed. The

Court of Appeals here did not explain why its speculation about

what it believed the results would have been had that issue been

appealed provided stronger precedent than the numerous actual

decisions of the other Courts of Appeals, some en banc, on

the validity of grooming and dress codes. (See citations supra.).

The District Court here properly dismissed any such applica-

bility of Laffey in a footnote.’®

10. 448 F. Supp. at 82; App. A29.

The speculation of the Court of Appeals as to what the

Laffey court might have decided had the eyeglass issue been

presented on appeal is particularly unpersuasive because the

Court of Appeals for the District of Columbia Circuit has twice

upheld the lawfulness of different grooming regulations for men

and “women ~in Dodge v. Giant Food, Inc., 488 F.2d 1333

(1973) and in Fagan v. National Cash Register Company, 481

F. 2d 1115 (1973).

Furthermore, the employer’s no eyeglasses rule is clearly dis-

tinguishable from Talman’s grooming and dress code because

the no eyeglasses rule would have resulted in depriving women

who must wear them of any Opportunity to be employed as

stewardesses. Talman’s dress requirements have no such effect,

or in fact any actual idverse employment effect on women, as

pointed out at length zlsewhere in the petition.

In addition the Court of Appeals here relied heavily on the

decision of this Court in City of Los Angeles Department of

Water and Power v. Manhart, 435 U. S. 702, 98 S. Ct. 1370,

55 L. Ed. 2d 657 (1978). The Court of Appeals ignored the

fact, however that in Manhart and in the other sex discrimina-

tion cases decided by This Court under Section 703(a), the

conclusions reached directly accord with whether or not signifi-

cant adverse impacts occurred to the affected class from the

employer’s practice.

Thus in Manhart This Court held illegal the employer’s prac-

tice of requiring female employees to pay more money into a

pension fund than was required of male employees, with a

resulting difference in take home pay between men and women.

Likewise in Nashville Gas Company v. Satty, 434 U.S. 136,

98 S.Ct. 347, 54 L. Ed. 2d 356 (1977), This Court struck

down an employer’s practice which, though neutral on its face,

in fact deprived women of substantial employment benefits and

opportunities by stripping women of their seniority after taking

a leave of absence when the same rule was not equally applied

to male employees. In General Electric Co. v. Gilbert, 429

’

U. S. 125, 97 S. Ct. 401, 50 L. Ed. 2d 343 (1976) This Court

upheld an employer's disability plan which provided the same

benefits to either sex but which did not include more extensive

benefits (for pregnancy) which were peculiarly applicable only

to certain persons of one sex.

Il.

THE COURT OF APPEALS MISUNDERSTOOD AND INCOR-

RECTLY INTERPRETED THE UNCONTROVERTED EVI-

DENCE.

In this case the undisputed evidence was that Talman does

not utilize for either men or women different standards in mak-

ing judgments on an employee’s compensation, promotions, or

performances. Except for Talman’s requirements that each sex

comply with Talman’s dress code policy in a slightly different

manner, there is no suggestion that Talman treats its male or

its female employees in other than an individualistic manner.

The Court of Appeals, after deciding that Talman’s grooming

and dress code resulted in stereotyping of women, and, therefore,

constituted illegal sex discrimination, nonetheless felt constrained

to look for some adverse impact from the grooming and dress

code upon the employment condition of Talman’s female em-

ployees. The Court on the basis of its own subjective opinion

concluded that Talman’s dress requirements for women are

“demeaning”. In fact, no evidence whatsoever exists in the rec-

ord that Talman’s female employees have in fact been demeaned.

The evidence is that the women employees overwhelmingly

like the career ensembles.

No doubt the employees who objected to their employer’s

grooming and dress regulation in the cases passed on by the

seven other Circuits disliked them and felt “demeaned”, but

that did not make those regulations impair the employee’s em-

ploymeni opportunities, status, compensation, terms, conditions

or privileges nor make the regulations illegal sex discrimination.

Additionally. the Court of Appeals erroneously concluded

that Talman’s female employees’ compensation was adversely

affected because Talman’s female employees paid for the in-

come tax benefit of the ensembles provided to them without cost

by Talman; paid for the maintenance of the ensembles, addi-

tions to the ensembles, and the cleaning of the ensembles; and

had to replace lost or damaged parts of the ensembles. This

conclusion completely ignored the fact that male employees

must do precisely the same thing with regard to their clothing.

Clearly the Court of Appeals on this point is simply mistaken.

Talman’s dress and grooming code does not in any way re-

duce employment opportunities for women or adversely impact

their employment status. Certainly the career ensemble require-

ments of the dress and grooming code do not deny any female

employee the possibility of employment. No jobs are barred to

them because of it. No contrary claim has ever been made. In

fact, 78.5% of Talman’s tellers and office and managerial em-

ployees are women (528 of 673 employees). Clearly the dress

and grooming code has not restricted employment possibilities

for women. There has been no claim that the dress and grooming

code is a mere pretext or intended to limit employment for

women. It of course does not have any such effect.

Furthermore the grooming and dress code does not affect

the other aspects of women employment status (i.e. the benefits

of their employment). It does not reduce their compensation

in any way. Nor does it restrict their employment mobility. It

does not impair in any way the opportunities, privileges or other

benefits of employment such as seniority, retirement, insurance,

sick leave and promotion.

A. The Actual Nature of the Clothing Requirements of

q the Grooming and Dress Code.

Talman permits its female employees wide latitude in the

effecting of the grooming and dress code requirements. The

clothing required by women consists of each individual women’s

choice of items from eight basic color-coordinated items: a skirt

or slacks and a jacket, or a blazer or a tunic. The jackets,

blazers and tunics may have long or short sleeves. The ensembles

change with the season and from year to year in color and

pattern. They are selected by a committee of six female em-

ployees chosen to provide a cross-section of all women employees

as to managerial or staff, job function, age and clothing size.

All women employees are encouraged to make suggestions to

the committee. Talman’s management exercises little, if any,

supervisory control over the committee except to require that

the committee’s selection of the apparel present a reasonable

business-like appearance. Talman does not dictate which items

of the ensemble any women should wear or which should be

worn at any given time. Such matters are left entirely to the

discretion of its women employees. Additionally, the women

employees wear blouses, scarfs, shoes, hosiery-and other acces-

sory items of their individual choices. The ensemble items do

not contain any identification with Talman in any manner and

are as suitable for general street wear as any other clothing.

Despite the actual varied nature of the clothing worn by the

women, Respondent Carroll argued that Talman’s dress re-

quirements for women is a “uniform policy”, a subjective, self-

serving characterization which the Court of Appeals accepted

(604 F. 2d at 1029) despite the evidence otherwise. The im-

plication of this characterization is that Talman’s grooming and

dress code thoroughly regiments its women employees’ clothing

and required it to be entirely the same whereas its male em-

ployees’ clothing is not. No evidence exists to support such

a conclusion; in fact the undisputed evidence is to the contrary.

As the District Judge noted," and as Judge Pell accurately

observed in his dissent in the Court of Appeals,’ Talman’s

policy applies equally to male and female employees and only

on the surface does it appear more restrictive as to females.

In fact, Talman’s dress and grooming code results in no more

standardized women’s clothing than do its requirements for

men’s clothing. As Judge Pell pointed out at length in his dissent,

the similarity of men’s clothing makes the clothing that the

men employees are required to wear no more, or even less,

diversified than the clothing which the women wear.

Ill.

THE COURT OF APPEALS DECISION IS BAD JUDICIAL

LEGISLATION AND BAD POLICY.

Talman’s grooming and dress code was adopted for a number

of legitimate business reasons. It is obvious that neat, clean

personnel in business-like attire is an important part of the

public “image” of an organization.

Efficient, courteous, business-like service to the public has

long been a primary and an effective competitive tool of Talman.

It is important to Talman because its competitors, other savings

and loan associations and financial institutions, offer nearly

identical savings accounts and loans. In Talman’s judgment, its

grooming and dress code is an important competitive measure

because its requirements assure that its employees maintain an

appropriate business-like appearance. The career ensemble re-

quirements are an important part of this code.

Furthermore, the women’s career ensembles contribute to

Talman’s good relations with its customers and employees. The

customers like them and comment favoravly about them. Ex-

perience has shown that the career ensembles improve relations

11. 448 F. Supp. at 83; App. A30.

12. 604 F.2d at 1037; App. A20.

with Talman’s women employees because they reduce super-

visors’ controversies with women employees over whether their

attire is appropriate and businesslike. Women employees over-

whelmingly favor the career ensembles. In fact, the career en-

sembles were adopted at the request of the women and enable

them to save money on their clothing for work. The Respondent’s

objection to them is only the subjective opinion of one part-

time employee.

All of these reasons are valid job-related reasons for Talman’s

grooming and dress code and particularly the career ensemble

portion of it. They are not only legitimate reasons, but they

are also the real reasons Talman has made the career en-

sembles part of its grooming and dress code and continued to

support it.

The Court of Appeals brushed aside these facts, stating that

it was the compulsion to wear a uniform which by its color,

cut and homogeneity is clearly identifiable with the employer

that evinces the discriminatory nature of the written dress code

for females. (604 F.2d at 1030). The Court ignored the

equivalent compulsion on Talman’s males employees to wear

either a business suit or business-type sport jacket and pants

plus a tie. Doubtless some of them would prefer to wear other

types of clothing and object to that compulsion and feel regi-

mented by it. The Court also ignored the fact that once a Talman

female employee leaves her place of employment, the career

ensemble is clearly not identifiable with Talman. In fact many

of them wear the career ensembles for other occasions than their

work.

In striking down Talman’s dress code regulations the Court

in effect held that Congress intended to interfere with the

business judgment of private employers as to how employees"

should dress while representing an employer and engaged in

its business even when the employer’s dress requirements in

question had no adverse impact on individuals or a class of

employees and did not result in lost or impaired employment

rman SE ss per en at.

TUT), Ue

Fy Pm eee! Fe Pale ® at mae Ao 1 4 OP get eee

opportunities for members of the affected class. The Court in

brushing aside one of Talman’s business practices, which has

devolved from its long standing experience, did so with the

suggestion that the Talman was free to follow several judicially

suggested, but untried, alternative means which, the Court felt,

would serve Talman’s purposes. (604 F. 2d at 1033).

The dangers in courts’ compelling businesses to adopt prac-

tices the courts consider more appropriate than those adopted

by management has been pointed out by Mr. Justice Rehnquist

in Furnco Construction Corp. v. Waters, 438 U. S. 567, 578, 98

S. Ct. 2943, 57 L. Ed. 2d 957 (1978). That case involved a

contractor’s practices which allegedly discriminated against

blacks in hiring bricklayers for critical brick work in steel

furnaces.

The issue before this Court was whether the Court of

Appeals for the Seventh Circuit had gone too far in substituting

its judgment as to hiring practices to be used by an employer.

On this point, This Court said:

The danger of embarking on a course such as that chartered

by the Court of Appeals here, where the Court requires

businesses to adopt what it perceives to be the “best” hiring

procedures, are nowhere more evident than in the record

of this very case. Not only does the record not reveal that

the court’s suggested hiring procedure would work satis-

factorily, but there is nothing in the record to indicate that

it would be any less “haphazard, arbitrary, and subjective”

than Furnco’s method, which the Court of Appeals critized

as deficient for exactly those reasons. Courts are generally

less competent than employers to restructure business prac-

tices, and unless mandated mandated to do so by Congress ~

they should not attempt it. (Emphasis supplied)

Such an observation is entirely applicable to the assumption

of the Court of Appeals in this case that Talman could have

made other clothing regulations which, the Court of Appeals

felt (despite its lack-of expertise in Talman’s business), would

have served Talman’s business purposes just as well. One of

LT I

these is already occasionally employed by Talman (on glamour

days) and has been found less satisfactory and to result in more

problems in personnel relations and with customers.

CONCLUSION.

The Court of Appeals wrongly promulgated a subjective

standard of when an employer’s employment regulations con-

stitute illegal sex discrimination. The Court’s standard ignores

the actual impact of the employer’s employment practices on

individual employees and the explicit requirements of the Equal

Employment Opportunity Act that there be adverse effect on

individuals of one sex. In doing so, the Court ignored the

numerous precedents in the Supreme Court and other courts

that have required such impact for illegal sex discrimination.

The Court also ignored that its holding conflicted with those

of all seven other Circuits which have passed on substantially

equivalent grooming and dress requirements of an employer.

Further, the Court of Appeals totally misapprehended the un-

disputed evidence in this case so as to justify the Court’s ap-

plication of its erroneous standard.

The Court of Appeals’ standard produces a vague and in-

definite basis for determining when an employer’s regulations

constitute illegal sex discrimination. As a result, compliance

with and enforcement of sex discrimination prohibitions have

been made difficult and uncertain.

Wherefore, the Supreme Court should issue a Writ of Cer-

tiorari to the Court of Appeais for the Seventh Circuit to review

the judgment and order of that court.

Respectfully submitted,

ROBERT A. DEANE,

STEPHEN L. RUFF, JrR.,

WILLIAM B. WEIDENAAR,

Counsel for Petitioner.

Of Counsel:

RUFF AND GROTEFELD, LTD.,

One North LaSalle Street,

Chicago, Illinois 60602,

(312) 263-3890.

APPENDIX A

604 F. 2d 1028 (1979)

IN THE UNITED STATES CouRT OF APPEALS

For the Seventh Circuit

No. 78-1458

MARY M. CARROLL, on behalf of herself and all others

similarly situated,

Plaintiff-A ppellant,

Vv.

TALMAN FEDERAL SAVINGS AND LOAN

ASSOCIATION OF CHICAGO,

Defendant-A ppellee.

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 76 C 1729—Joel M. Flaum, Judge

ARGUED DECEMBER 6, 1978—Decipep AucustT 21, 1979

Michael T. Welch, Winston & Strawn, Chicago, IIl., for plain-

tiff-appellant.

Robert A. Deane, Chicago, Ill., for defendant-appellee.

Before CASTLE, Senior Circuit Judge, CUMMINGS and PELL,

Circuit Judges.

CUMMINGS, Circuit Judge.

Plaintiffs amended complaint was brought under Title VII

of the Civil Rights Act of 1964 (42 U. S.C. § 2000e et seg.) on

behalf of herself and all similarly situated female employees of

defendant savings and loan association. The gravamen of the

complaint was that defendant imposed a dress code on its fe-

male office employees without imposing a comparable dress

code on its male office employees. Plaintiff moved for certifica-

tion of her class and both parties moved for summary judgment.

The district court did not certify a class because it granted the

defendant’s motion for summary judgment on the ground that its

female dress code does “not prevent employment opportunity”

under Section 703(a)(2) of Title VII (note 12 infra). 448

F. Supp. 79, 83. Since this case was based on Section 703(a)

(1) (note 2 infra) rather than Section 703(a) (2), the employ-

ment opportunity test used by the district court was erroneous ~

and requires us to reverse and remand.

Defendant requires all of its female tellers, office and mana-

gerial employees to wear a uniform, whereas male employees

in the same positions need wear only customary business attire.

This may consist of a suit, a sport jacket and pants, or even a

“leisure suit,” as long as it is worn with a shirt and tie. It is of

course understandable that defendant wishes its employees to

wear suitable business attire. However, the question before us

is whether its one-sided rule requiring its 525 female employees

to wear uniforms while there is no such requirement for its

comparable 150 male employees’ is forbidden by Section

703(a)(1) of Title VIL of the Civil Rights Act of 1964.? By

this rule defendant discriminated against plaintiff with respect to

her “compensation, terms, conditions, or privileges of employ-

1. These 675 employees are tellers, officers and managerial per-

sonnel.

2. Section 703(a)(1) provides:

“(a) It shall be an unlawful employment practice for an em-

ployer—

“(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 employ-

ment, because of such individual’s race, color, religion, sex,

or national origin * * *.” (42 U.S.C. § 2000e-2(a)(1).)

ment” because of her sex although such conduct is proscribed

by the literal terms of that Section.

When the Equal Employment Opportunity Commission in-

vestigated plaintiff's complaint, it concluded that defendant's

female dress policy constituted a “disparity in the terms and

conditions of femaies as a class” and that possible customer

preference for uniforms was “not a defense to an employment

policy which makes a distinction upon grounds not permitted

by Title VII” (P. App. 19). Therefore, the Commission tried

to settle the matter and, when unsuccessful, issued a right-to-

sue letter to plaintiff (P. App. 20), thus enabling this lawsuit

to be filed.

The district court noted that the uniforms that females must

wear consist of five basic items: a color-coordinated skirt or

slacks and a choice of a jacket, tunic or vest (P. App. 94). As

the reproduced photograph shows,’ there is no question that the

various combinations depict uniforms.

3. The photograph is Exhibit I to defendant’s Memorandum on

Summary Judgment and is reproduced on page 1 of defendant's

Supplemental Appendix.

In contrast to the written uniform requirement for women em-

ployees, comparable male employees are permitted to wear

business suits or business-type sport jackets and pants and ties

(P. App. 21), and they are also permitted to wear leisure suits

with a “suitable shirt and” tie” (P. App. 36). Until 1968 they

too were required to wear uniforms (P. App. 32).

The written dress code for female employees even discrim-

inates with respect to their compensation, for defendant treats

the cost of the two-piece uniform which it furnishes as income

to women employees, withholding income tax on that amount

from their wages (P. App. 91). In addition, the female em-

ployees are required to pay for the cleaning and maintenance of

their uniforms “which must be clean and neat at all times”

(P. App. 22). If a part of the uniform becomes lost or dam-

aged, the employee must replace it at her own expense. More-

over, if an employee wishes additional parts of the uniform for

variety or so that it can be cleaned more frequently than once

a month, these extra pieces must also be purchased at her own

expense. The written dress code for females also discriminates

against them with respect to the “terms, conditions, or privileges

of employment” because they are required to wear these uni-

forms each working day except the last Tuesday of each month,

- when they are normally being cleaned, and during the week be-

tween Christmas and New Year’s (P. App. 21, 67, 94). As in

plaintiff's case, defendant suspends employees if they do not

conform to the dress code (P. App. 25).

Laffey v. Northwest Airlines, Inc., 366 F.Supp. 763

(D. D. C. 1973), vacated and remanded in part and affirmed

in part, 185 U.S. App. D. C. 322, 567 F. 2d 429 (1976), cer-

tiorari denied, 434 U.S. 1086, 98 S.Ct. 1281, 55 L. Ed. 2d

792, sets the stage for the proper disposition of this dispute.

There the district court held that an airline’s ruling forbidding

female cabin attendants to wear eyeglasses violated Section 703

(a)(1) of Title VII (366 F. Supp. 763, 790), and the airline

did not appeal from that aspect of this decision. See 567 F. 2d

at 454, n. 170. However, the court of appeals affirmed the dis-

trict court’s comparable holding that inferior pay scales and

weight limitations imposed upon stewardesses as compared to

stewards (then known as pursers) violated Title VII. Because

of this holding the court of appeals obviously would have agreed

with the district court’s rulings that the airline had violated

the stewardesses’ statutory rights by prohibiting them from

wearing eyeglasses, requiring them to purchase prescribed lug-

gage, and imposing on them a shorter height limitation than on

stewards.*

4. In Los Angeles Dept. of Water & Power v. Manhart, 435

U. S. 702, 708, 98 S. Ct. 1370, 55 L. Ed. 2d 657, a similar height

limitation was condemned under Section 703(a)(1).

The dissenting opinion of Judge Pell characterizes both the

male and female dress odes as resulting in ordinary business

attire and concludes that the two rules are only semantically

different. However, it is the compulsion to wear a uniform which

by its color, cut and homogeneity is clearly identifiable with the

employer that evinces the discriminatory nature of the written

dress code for females.5 The dissent relies on the fact that the

female uniforms are not “unattractive in style, inferior in

quality, ill-fitting, or uncomfortable such that they would cause

embarrassment or be considered demeaning,” but that is no

answer to the discrimination involved.® Finally, the dissent re-

lies on the fact that the female dress code “did not substantially

burden the female employees more than male employees in the

enjoyment of their jobs” (emphasis supplied), but that is not

the criterion imposed in Section 703(a)(1) of the Act, for that

Section was “intended to strike at the entire spectrum of dis-

parate treatment of men and women resulting from sex stereo-

types.” Sprogis v. United Air Lines, 444 F. 2d 1194, 1198 (7th

Cir. 1971), certiorari denied, 404 U. S. 991, 92 S. Ct. 536, 30

L. Ed. 2d 543.” Also, it is immaterial that some of the female

employees favored the uniform dress code because, as Justice

Stevens stated in Los Angeles Dept. of Water & Power v. Man-

hart, 435 U.S. 702, 707, 98 S.Ct. 1370, 55 L. Ed. 2d 657,

Section 703(a)(1) makes it unlawful to discriminate against

any individual because of such individual’s sex. He added:

“The statute’s focus on the individual is unambiguous. It

precludes treatment of individuals as simply components of

5. As we point out infra, the employer had numerous alternative

means of assuring that all its employees wear business-like apparel

that would not contravene Title VII.

6. We do not think the personal taste of this Court is relevant

to the rights involved in this appeal, but are quite certain that

there is room for differences of opinion on the sartorial excellence

of the uniforms.

7. This pasage was quoted with approval in Los Angeles Dept.

of Water & Power v. Manhart, 435 U.S. 702, 707, n. 13, 98 C. Ct.

1370, 55 L. Ed. 2d 657.

a racial, religious, sexual, or national class. If height is

required for a job, a tall woman may not be refused em-

ployment merely because, on the average, women are too

short. Even a true generalization about the class is an in-

sufficient reason for disqualifying an individual to whom

the generalization does not apply.

* * * bd *

“Even if the statutory language were less clear, the basic

policy of the statute requires that we focus on fairness to

individuals rather than fairness to classes.” (435 U.S. at

708, 709, 98 S. Ct. at 1375-1376.)*®

Section 703(c) of the statute permits sex discrimination in

employment where sex “is a bona fide occupational qualifica-

tion reasonably necessary to the normal operation” of the partic-

ular business (42 U.S.C. § 2000e-2(e)). However, defendant

does not rely on a “BFOQ” defense nor does defendant rely

on any business necessity for this dress code (Br. 53-54). In-

stead its defense is that its dress code, if discriminatory, was job-

related or reasonably necessary to the proper operation of its

business (Br. 55, 57). But the courts have only permitted

a stricter “business necessity doctrine” as an exception to Title

VII,® and defendant has not attempted to justify the female

dress code on the ground of business necessity (Br. 46-57).

8. Other cases showing that even though many of the women

employees like the uniforms, that is no defense to a violation of

Section 703(a)(1) include Diaz v. Pan Am World Airways, Inc.,

442 F. 2d 385, 389 (5th Cir. 1971); Sprogis v. United Air Lines,

Inc., 444 F. 2d 1194; 1199 (7th Cir. 1970), certiorari denied, 404

U.S. 991, 92 S.Ct. 536, 30 L. Ed. 2d 543; Doe v. Osteopathic

Hospital of Wichita Inc., 333 F. Supp. 1357, 1362 (D. Kan. 1971).

The reference to “enjoyment” in Sprogis relied upon in the dissent

was to job enjoyment rather than any satisfaction that defendant's

employees might derive from their clothing. See 444 F.2d 1194,

1198.

9. See, e.g., United States v. St. Louis-San Francisco Railway

Co., 464 F.2d 301, 308 (8th Cir. 1972), certiorari denied, 409

U.S. 1107, 93 S.Ct. 900, 34 L. Ed. 2d 687; Sagers v. Yellow

Freight System, Inc., 529 F. 2d 721 (Sth Cir. 1971); United States

v. Bethlehem Steel Corp., 446 F.2d 652, 662 (2d Cir. 1971).

As plaintiff has pointed out, defendant has several permissible

alternatives to the present discriminatory dress code. Thus it

could legitimately require women to wear “appropriate business

attire” while at work, as in the case of the men employees,’°

or it could make the uniform optional to women employees."

Otherwise it could require comparable male employees to wear

some sort of uniform while at work, as they did between 1958

and 1969, and as numerous other banks and savings institu-

tions do. Title VII does not require that uniforms be abolished

but that defendant’s similarly situated employees be treated in

an equal manner.

The employment opportunity grooming cases relied upon

in the dissent and by defendant do not apply to the present situa-

tion, for this is a Section 703(a)(1) case rather than one

brought under Section 703(a)(2)'* which alone requires de-

privation of employment opportunities in order for a classifica-

tion based on sex or another prohibited basis to be held illegal.”

10. It would not be offensive, for example, if the employer re-

quired its female employees to wear _business-like skirts or pants.

and a vest or jacket.

11. If the dissent is correct that the response to the uniforms

has been “positively favorable,” one would expect little effect on

the employer’s dress code in making the uniforms optional.

12. Section 703(a}(2) provides:

“(a) It shall be unlawful employment practice for an em-

ployer—

1 * * * ae

“(2) to limit, segregate, or classify his employees or ap-

plicants for employment in any way which would deprive or

tend to deprive any individual of employment opportunities

or otherwise adversely affect his status as an employee, because

of such individual’s race, color, religion, sex, or national origin.”

(42 U.S.C. § 2000e-2(a) (2).)

13. Defendant insists that sex discrimination must involve a de-

privation of opportunity for employment or of the benefits of em-

ployment in order to violate Section 703(a)(1) (supra note 2).

However, that Section proscribes discrimination with respect to

terms and conditions of employment, as well as compensation and

(Footnote continued on next page.)

Nashville Gas Co. v. Satty, 434 U.S. 136, 144-145, 98 S. Ct.

347, 54 L. Ed. 2d 356.

Fountain v. Safeway Stores, Inc., 555 F.2d 753 (9th Cir.

1977), relied upon by the district court (448 F. Supp. 79, 81),

found no violation of Title VII in Safeway’s requirement that

male employees wear a tie, but in Fountain the court merely

held that “Safeway may promulgate different personal appearance

regulations for males and females * * *” (55 F. 2d at 756).

Similarly, in Fagan v. National Cash Register Co., 157 U.S.

App. D.C. 15, 481 F. 2d 1115 (1973), also relied upon by

the district court, an employer’s rule regulating hair length

for men was held to be non-discriminatory."* The Fagan court

commented

“reasonable regulations prescribing good grooming stan-

dards are not at all uncommon in the business world, in-

deed, taking account of basic differences in male and

female physiques and common differences in customary

dress of male and female employees, it is not usually

thought that there is unlawful discrimination ‘because of

ge (157 U.S. App. D.C. at 17, 481 F.2d at 1117,

a. 3.

(Footnote continued from preceding page.)

privileges. Other courts have recognized that personal appearance

regulations that treat male and female employees difterentiy i pro-

scribed by Section 703(a)(1) at least where, as here, they cannot be

justified as reasonably related to the employer’s business needs.

Roberts v. General Mills, Inc., 337 F. Supp. 1055 (N.D. Ohio

1971); Donohue v. Shoe Corporation of America, 337 F. Supp. 1357

C.D. Cal. 1972); Aros v. McDonnell Douglas Corporation, 348

F. Supp. 661 (C. D. Cal. 1972); Rafford v. Randle Eastern Ambu-

lance Service, Inc., 348 F. Supp. 316 (S. D. Fla. 1972).

14. In Fagan, the hair-length rule applied only to service repre-

sentatives, whose jobs took them to the permises of customers during

business hours. Although the plaintiff argued primarily that the

regulation unconstitutionally invaded his privacy interests, he also

suggested that the regulation constituted sex discrimination. How-

ever, apart from the fact that the regulation reflected social norms

and was reasonable, there were no women service representatives in

comparison to whom the plaintiff could even arguably have been

treated disadvantageously.

A10

We share the reluctance of the courts in Fountain and Fagan to

pass on whether a particular personal appearance regulation

promulgated by an employer is “reasonable.” So long as they

find some justification in commonly accepted social norms and

are reasonably related to the employer’s business needs, such

regulations are not necessarily violations of Title VII even

though the standards prescribed differ somewhat for men and

women.!® However, the situation is different where, as here,

two sets of employees performing the same functions are sub-

jected on the basis of sex to two entirely separate dress codes—

one including a variety of normal business attire and the other

requiring a clearly identifiable uniform. This different treat-

ment in the conditions of employment for feraale employees

cannot be justified by business necessity, since, as already de-

scribed, the employer had a variety of non-discriminatory al-

ternative means of assuring good grooming. Moreover, the

disparate treatment is demeaning to women. While there is

nothing offensive about uniforms per se, when some employees

are uniformed and others not there is a natural tendency to

assume that the uniformed women have a lesser professional

status than their male colleagues attired in normal business

clothes. The employer’s stated justification for the policy is

that

“dress competition among women is reduced and they do

not have to be concerned about wearing something that is

15. The other two cases on which the district court relied,

Jarrell v. Eastern Air Lines, 430 F. Supp. 884 (E. D. Va. 1977),

and In re National Airlines, Inc., 434 F.Supp. 269 (S. D. Fla.

1977), upheld weight limitations imposed on flight attendants as

part of the employer’s personal appearance regulations. In both

cases, however, the courts undertook a careful analysis of the weight

limitation rules and how they were applied to both male and female

employees. Each court concluded that the rules at issue, unlike those

in Laffey v. Northwest Airlines, Inc., supra, did not discriminate

on the basis of sex. The two cases are thus consistent both with

Laffey and with our conclusion in this case, since a factual deter-

mination of whether the rule was discriminatory in application would

have been unnecessary if employees’ rights under Title VII were as

limited as defendant contends.

All

appropriate business attire because the career ensemble”

is acceptable. [D]ress competition exists among women em-

ployees on glamour days [bJut in the case of men em-

ployees there is little difficulty getting them to adhere to

the dress and grooming code requirements. And there is

little dress competition among male employees * * *.”

(Br. 5-7.)

Furthermore, counsel for defendart commented at oral argu-

ment that although the defendant trusts the business judgment

of its female employees,

“the selection of attire, of clothing on the part of women

is not a matter of business judgment. It is a matter of taste,

a matter of what the other women are wearing, what

fashion is currently. When we get into that realm * * *

problems develop. Somehow, the women who have ex-

cellent business judgment somehow follow the fashion, and

the slit skirt fashion which is currently prevalent * * *.

They tend to follow those [fashions] and they don’t seem

to equate that with a matter of business judgment.”

Clearly these justifications for the rule reveal that it is based on

offensive stereotypes prohibited by Title VII. As Judge Pell

wrote for this Court in In re Consolidated Pretrial Proceedings

in the Airlines Cases, 582 F.2d 1142 (7th Cir. 1978), the

proffered justification

“relies heavily on stereotypical assumptions, a posture

which is anathema to the maturing state of Title VII

analysis.

* * * * ok

“[A]ssumptions steeped in cultural stereotypes * * * are

inconsistent with the purposes of the Act.” (582 F.2d at

1146-1147) .™"

16. The defendant refers to the clothing at issue here as a

“career ensemble” rather than a uniform, but that euphemism does

not alter our analysis. Days on which female employees are ex-

empted from the requirement of wearing the uniform are referred

to by the defendant as “glamour days.”

17. Contrary to the implication in the dissent, our previous dis-

cussion of other cases involving appearance regulations clearly shows

(Footnote continued on next page.)

Al2

It should be noted that when plaintiff did not wear the uni-

form, the district court found that she appeared at work

“dressed in appropriate business attire” (P. App. 96). More-

over, defendant’s personnel manager admitted that during the

times they were not required to wear uniforms, namely on

the last Tuesday of every month and during Christmas week,

these female employees never wore “improper business attire”

(P. App. 82-83).

With all due respect to the views of a valued colleague, Judge

Pell’s dissenting opinion favors affirmance mainly because the

sex discrimination here is not blatant. However, Section 703

(a) (1) prohibits any sex discrimination with respect to compen-

sation, terms, conditions, or privileges of employment (note 2

supra). Hence we reverse the judgment below and remand for

class determination and entry of summary judgment for plain-

tiff, affording her whatever relief the district court considers ap-

propriate after careful consideration of her six relief prayers

(P. App. 11-13).

Reversed and remanded with directions.

PELL, Circuit Judge, dissenting.

With this decision of this court, Big Brother—or perhaps in

this case, Big Sister—has encroached, in my opinion, father

than the Congress intended or authorized into the domain of

private enterprise, or what remains of that concept, not for the

purpose of assuring clean or safe, or even enjoyable, working

conditions on an equality of sex basis, nor for the purpose of

guaranteeing fair, adequate or equal compensation, but simply

to respond to the emotional complaint of one disgruntled em-

ployee who purported to claim, without any support in the

(Footnote continued from preceding page.)

that we do not view the recognition of different dress norms for

males and females to be offensive or illegal stereotyping. What is

offensive is the compulsion to wear employer-identified uniforms and

the assumption on which the employer openly admits that rule is

based: that women cannot be expected to exercise good judgment

in choosing business apparel, whereas men can.

Al3

record, that she represented the thinking of a class of em-

_ployees. I therefore respectfully dissent.

The majority opinion categorizes the clothing women are

required to wear at work as uniforms but refers to that which

men must wear as customary business attire. These characteriza-

tions ignore the fact of life that men’s customary business attire

has never really advanced beyond the status of being a uniform.

True there have been variations from time to time probably

mainly attributable to the desire of the clothiers to stay in

business—there have been wide and narrow lapels, cuffed and

cuffless trousers, different colored shirts which are ordinarily

substantially covered by jackets, some splashes of color in neck-

ties, a choice of four-in-hands or bowties, non-vested and vested

suits," a choice of belted or beltless or suspender-supported

trousers, ankle-length or over-the-cali hosiery, pleated and non-

pleated trousers, three button or two button jackets and even

occasionally in daring moments a pleated-back jacket. In the

most innovative soaring from the nest of uniformity that I can

recall in recent decades someone introduced the so-called leisure

suit which upon any fair analysis itself resembles a uniform.

Men, of course, do have a choice of materials and colors in their

suit, or sport jacket and slacks outfits, but I am not aware that

lurid colors would qualify as “customary business attire,” any

more than would one of the bizarre assemblages worn by a

modern rock singer.

On the other hand, women have had a wide range of non-

uniformity, of recent vintage being the slit skirt and a few years

earlier the mini which often barely qualified as a skirt. High

boots have alternated with spike heels and sandals. The dresses,

or blouses and skirts which are not covered by outer jackets as

in the situation of men, are multi-colored and multi-patterned.

1. Men are so unfortunately locked in to these narrow style

changes that now they frequently are unable to purchase a tropical

‘weight suit without a restrictive vest which is a ludicrous third piece

in a summer which marks perhaps the end of a synonymity between

air conditioning and coolness.

Al4

Women frequently now wear slacks, an accoutrement in pre-

vious years regarded as being the exclusive province of the male.

In sum, customary business attire for the men employees of

Talman seems to me to confine these employees in a uniform

to the same extent as the Talman dress code does for women,

in each case in reality not so much for the purpose of requiring

a uniform but for the purpose of achieving a uniformity of

business-like attire. One only has to observe people on the way

to business jobs on the sidewalks of Chicago to be aware of

the essential uniformity of male garb and the lack of that uni-

formity among women.

I recognize that the favorite putting-down remark that is

resorted to when anyone is so bold as to delineate actual factual

differences between men and women—in this case, the clothing

that they customarily wear-—is to accuse the person of indulging

in stereotyping. If what I have written about the difference of

clothing styles between the sexes be stereotyping, I will borrow

an oft-quoted phrase from one of our forebears who, I believe,

would be aghast at the extent of omnipresent governmental in-

trusion in our daily affairs, and simply say, “Make the most

of it.”

The plaintiff argues that the defendant’s career ensemble re-

quirement for female employees without an identical require-

ment for male employees violates § 703(a) of the Act which

provides that 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 tc his compensation, terms, conditions

or privileges of employment, because of such individ-

ual’s race, color, religion, sex, or national origin; or

(2) to limit, segregate, or classify his employees in any

way which would deprive or tend to deprive any

individual of employment opportunities or otherwise

Al5

adversely affect his status as an employee, because of

such individual’s race, color, religion, sex, or national

origin.

42 U.S.C. § 2000e-2(a).

I agree with the district court that this is a case of first im-

pression. The question here, it seems to me, is whether an em-

ployer violates Title VII by enforcing a dress code which is

applicable to both men and women but which is only on the

surface restrictive as to women. After a thorough analysis of

the case law relevant to this issue, the district court concluded

that the defendant’s dress code did not prevent employment

opportunities and thus did not violate Title VII.

The majority opinion makes much of the fact that the district

court focused on “employment opportunities” and not on “con-

ditions of employment.” It is true that the Congress put these

two aspects into two separate statutory subparagraphs but I re-

gard this out-of-any-abundance-of-caution separation as creating

a distinction without a real difference. If what Talman required

of its women employees did not limit them in a way which

tended to deprive them of employment opportunities or other-

wise adversely affect their status as an employee, I cannot con-

ceive that there was discrimination as to conditions of their

employment. The difference, if it exists, is purely semantical.

There really being no fundamental difference in impact,

insofar as the present factual context is concerned, I regard it

as unimportant that some judicial opinions have addressed the

broader and all-encompassing “employment opportunities” and

its accompanying prohibition against an adverse effect on status

as an employee. The cases do make it clear that “regulations

promulgated by employers which require male employees to

conform to different grooming and dress standards than female

employees is not sex discrimination within the meaning of Title

VII.” Fountain v. Safeway Stores, Inc., 555 F.2d 753, 755

(9th Cir. 1977). Accord Barker v. Taft Broadcasting Co., 549

F. 2d 400, 401 (6th Cir. 1977); Earwood v. Continental South-

Al6

eastern Lines, Inc., 539 F.2d 1349, 1351 (4th Cir. 1976);

Longo Vv. Carlisle DeCoppet & Co., 537 F.2d 685 (2d Cir.

1976); Knott v. Missouri Pac. Ry. Co., 527 F.2d 1249, 1252

(8th Cir. 1975); Willingham v. Macon Telegraph Publishing

Co., 507 F. 2d 1084, 1092 (Sth Cir. 1975) (en banc); Dodge

v. Giant Food, Inc., 160 U.S. App. D.C. 9, 13, 488 F. 2d

1333, 1337 (1973).

In many of the cases the courts have not distinguished be-

tween § 703(a)(1) and § 703(a)(2). The plaintiffs have

claimed a violation of § 703(a) and the courts have merely

discussed whether the conduct constitutes sex discrimination

within the meaning of § 703(a). Thus in Fountain, the litiga-

tion involved a discharge of the plaintiff for failure to wear a

tie during working hours. Female employees did not have to

wear ties, The employer had in the past amended its dress code

to some extent in response to complaints from employees, but

it refused to eliminate its necktie requirement. The court, with-

out reference to a specific subsection of § 703, held that this

dress code did not constitute sex discrimination under Title VII.

In response to an allegation that the company responded to

male and female complaints in a discriminatory manner (ap-

parently accommodating females more readily than males), the

court stated that the company’s reactions to different protests

merely indicated an effort to maintain dress and grooming regu-

lations that are not overly burdensome to its employees yet still

serve to extend an image to its customers which it believed was

beneficial to its business. “This power to amend regulations for

one sex independent of any action with respect to the regulations

for the other sex flows directly from the employer’s power to

promulgate separate regulations in the first place.” Jd. at 756.

In Barker v. Taft Broadcasting Co., 549 F. 2d 400 (6th Cir.

1977), the plaintiff was discharged because of his hair length

pursuant to a grooming code which mandated shorter hair

length for men than for women. Indeed, the women’s code ap-

parently did not restrict length at all, but limited only the man-

A17

ner in which their hair could be styled. The court concluded

that the complaint, which apparently did not specify a subsec-

tion of § 703, did not state a claim. Although the majority

opinion does not mention a specific subsection of § 703, the

dissent by Judge McCree says that the majority opinion was

based on § 703(a)(1). The dissent, however, does not then

articulate any difference between the two subsections. The ma-

jority’s reasoning was that: “Employer grooming codes requiring

different hair lengths for men and women bear such a negligible

relation to the purposes of Title VII that we cannot conclude

they were a target of the Act.” Jd. at 401.

In Knott v. Missouri Pacific Railroad Co., 527 F.2d 1249

(8th Cir. 1975), the plaintiffs were discharged for not comply-

ing with the employer’s hair length regulation which applied

only to male employees. The employer had no similar regula-

tion restricting the hair length or hair style of female employees.

The court quoted both subsections of § 703(a) but did not dis-

cuss them separately. In reviewing the little legislative history

that exists, it stated that “the legislative history accompanying

passage of the 1972 amendments makes clear, however, that the

primary thrust of the provision was to discard outmoded sex

stereotypes posing distinct employment disadvantages for one

sex.” Id, at 1251. The court summarized the case law as con-

cluding that the Act “was never intended to interfere in the

promulgation and enforcement of personal appearance regula-

tions by private employers.” Jd. at 1251-52. In reaching its hold-

ing that “minor differences in personal appearance regulations

that reflect customary modes of grooming do not constitute sex

discrimination within the meaning of [§ 703(a)],” it stated that

“[w]here, as here, such policies are reasonable and are imposed

in an evenhanded manner on all employees, slight differences in

the appearance requirements for males and females have only a

negligible effect on employment opportunities.” Jd.

Other courts, however, without particular recognition that

they were focusing on either subsection did refer to the “em-

A18

ployment opportunity” theory. In Dodge, for example, different

hair-length requirements for male and female employees were

held valid under Title VII on the theory that Title VII was not

“intended to invalidate grooming regulations which have no

significant effect upon the employment opportunities afforded

one sex in favor of the other.” 160 U S. App. D.C. at 13, 488

F. 2d at 1337.

Similarly, in Willingham the Fifth Circuit, sitting en banc,

upheld an employer’s sex-differentiated hair length regulation

and adopted the view that sex discrimination on the basis of

something other than immutable characteristics or the exercise

of constitutionally or statutorily protected rights does not in-

hibit employment opportunity in violation of Title VII. 507 F.

2d at 1191-92. The Fourth Circuit followed this reasoning in

Earwood to uphold a similar hair-length regulation. The ma-

jority in Earwood specifically distinguished between discrimina-

tion based on factors of personal preference (e. g. hair length

or mode of dress) and discrimination based on either immut-

able sex characteristics or constitutionally protected activities

such as marriage or child rearing. 539 F. 2d at 1351.?

Even if we extended the scope of Title VII beyond the exer-

cise of fundamental rights or one’s possession of certain immut-

able characteristics as urged in the dissent in Earwood, I think

we should go no farther than to adopt an equitable analysis,

and one which appears to me to reflect Congressional intent

more accurately, and makes cognizable under § 703(a) dis-

crimination based on any factor which substantially burdens

employment opportunities or enjoyment for the employees of

one sex. This approach follows from and is consistent with this

court’s broad view of Title VII expressed in Sprogis v. United

Air Lines, 444 F. 2d 1194, 1198 (7th Cir. 1971), that “Sec-

2. The cases to which I have referred all involve discrimination

complaints by male employees. I do not conceive that either the

plaintiff or the majority opinion takes the position that there should

es a difference of standard dependent upon the sex of the com-

plainant.

Al9

tion 703(a)(1) subjects to scrutiny and eliminates such irra-

tional impediments to job opportunities and enjoyment which

have plagued women in the past.” (Emphasis added.)

It appears to me in the interest of accomplishing the Con-

gressional objective rather than engaging in semantical hair-

splitting as to the differences between employment opportunities

and employment conditions that any issues presented under

§ 703(a) could be better analyzed from the point of view of

whether the claimed discrimination inhibits one sex more than

the other in the enjoyment of their jobs. In the present case this

would require a determination of whether the on-the-surface

sex-differentiated dress standards substantially burden female

employees’ enjoyment of their jobs more than that of male em-

ployees. In essence it appears clear to me in this case that both

groups are required to conform to a status of wearing custom-

ary business attire.*

Looking once more at what Talman’s female dress code

specifically involves, it is clear that it is not strait-jacketing but

does offer substantial variety, all of which nevertheless is de-

signed to create a businesslike rather than a fashion fair atmos-

phere. The variety permits slacks or one of three different skirts

to be combined with either a jacket, tunic, or vest. With this

two-piece outfit the woman may wear a variety of other clothing

substantially of her own choosing, including blouses, sweaters,

scarves, hosiery, and shoes. She also may wear any combination

of her choosing each day. The variety of apparel available to

female employees within the career ensemble regulations mili-

tates against finding a substantial burden on enjoyment of their

jobs vis-a-vis male employees. Accordingly, a decision affirming

the district court would not render all sex-differentiated dress

codes impervious to Title VII scrutiny. We do not here have a

3. The dress code in the present case does not restrict employ-

ment possibilities for women. No jobs or promotions are barred to

women because of it. Moreover, the plaintiff does not claim that

the dress code is a mere pretext intended to limit employment for

women.

A20

case presenting a policy which requires females to wear only a

specific uniform with less individual discretion to choose ac-

companying items of clothing, and which gives males broad dis-

cretion in choosing their work attire. When such a case is pre-

sented it will then be appropriate to determine whether the

policy would burden females in the enjoyment of their jobs

sufficiently to violate Title VII.

A second factor in the present case is that the career en-

sembles women are required to wear are not unattractive in

style, inferior in quality, ill-fitting, or uncomfortable such that

they would cause embarrassment or be considered demeaning.‘

A female employee wearing a career ensemble would not ap-

pear less well-dressed than a male employee dressed according

to the regulations applicable to him. As I stated at the outset

of this dissent the dress standards applied to both men and

women result in ordinary business attire although the rules are

semantically different. This difference in form, although not in

substance, is not sufficient to constitute a substantial burden for

females in the enjoyment of their jobs. Again, we would have a

quite different case if, for example, the female employees of a

savings and loan association were required to wear dehumaniz-

ing or uncomfortable clothing, or drab unstylish outfits, or any

other attire which by the acceptable female dress norms of the

time would be considered as embarrassing or demeaning to the

wearer while male employees were only required to wear con-

ventional business suits. Indeed, it is again to be noted that the

Talman policy does not require distinctively female attire such

as skirts only, slacks being permitted.

A further factor contributing to my conclusion that the dress

code in this case did not substantially burden female employees

more than male employees in the enjoyment of their jobs is that

there has been no particular oblatration, if indeed any com-

plaint at all, by female employees about the dress code, and in

4. See the discussion hereinafter on how the employees them-

selves select the style of the ensembles.

A21

fact, the response has for years been positively favorable. The

lack of complaint and generally positive response by female

employees to the career ensemble program may well be due to

the process by which the career ensemble is selected. A Career

Ensemble Committee consists of six women employees chosen

to provide a cross-section as to age, clothing size, job functions,

and level in the corporate hierarchy. This committee selects the

style, color, and supplier of the career ensemble. All female

employees can make comments and suggestions to the commit-

tee which reviews them and recommends changes.

Finally, I regard the emphasis in the majority opinion on the

fact that women have to pay income tax on the first outfit

provided to them without cost as nit-picking. When the men buy

their business wear apparel they pay the full price without any

tax deduction, the amount being far more substantial than the

income tax based on the cost of the clothing received by the

women. Women, of course, have to keep their ensembles in

repair and cleaned. So do the men. Any replacements must be

paid for by the women. Likewise the men must pay for the

clothing they wear.

Opponents of the Equal Rights amendment have argued that

its adoption would be followed by extreme applications border-

ing on the ridiculous where no meaningful discrimination exists.

The result reached by the majority opinion in the application

of the statute I can only regard as adding strength to that

argument.

A22

APPENDIX B

448 F. Supp. 79 (1978)

MARY M. CARROLL, on behalf of herself

and all others similarly

situated, Plaintiff,

TALMAN FEDERAL SAVINGS AND

LOAN ASSGCIATION OF

CHICAGO, Defendant.

No. 76 C 1729.

United States District Court,

N. D. Illinois, E. D.

Feb. 28, 1978.

Female employee of savings and loan brought action against

the savings and loan based on alleged sex discrimination. The

District Court, Flaum, J., held that the savings and loan’s dress

policy, which required women to wear either a color coordinated

skirt or slacks and either a jacket, tunic or vest and which re-

quired only that men wear business suits or business-type sport

jackets and pants and ties did not violate the Civil Rights Act.

Judgment for defendant.

1. Civil Rights—9.14

The intent of Congress in enacting Title VII was to ensure

that all males and females have equal job opportunities. Civil

A23

Rights Act of 1964, § 701 et seq. as amended 42 U.S.C.A.

§ 2000¢e et seq.

2. Civil Rights—9.14

Requirement of bank that female employees wear particular

clothing, being permitted to choose between five basic items in

any combination, including a color coordinated skirt or slacks

and either a jacket, tunic or vest, with requirement that those

“career ensembles” be worn every business day except the last

Tuesday of every month and one week in August and one

week in December did not violate the Civil Rights Act, even

though men were not required to wear such “career ensembles,”

although they were required to wear business suits or a com-

bination of a business-type sport jacket and pants and were re-

quired to wear ties and received no dispensation.

Michael T. Welch, Winston & Strawn, Chicago, IIl., for

plaintiff.

Robert A. Deane, Stephen L. Ruff, Ruff & Grotefeld, Ltd.,

Chicago, Ill., for defendant.

MEMORANDUM OPINION

FLauM, District Judge:

The instant lawsuit is brought as a class action for declara-

tory, injunctive and monetary relief on behalf of all female em-

ployees of defendant Talman Federal Savings and Loan As-

sociation of Chicago [Talman] who have been limited in their

choice of dress which they are allowed to wear at work. Suit

is brought pursuant to Title VII of the Civil Rights Act of 1964,

as amended, 42 U.S.C. § 2000e et seg. Several motions are

presently pending before the court. Both parties move for sum-

mary judgment. Plaintiff also moves for certification of a class

of employees who are required to conform to the allegedly dis-

criminatory dress code. Fed. R. Civ. P. 23(c). Since the court

grants defendant’s motion for summary judgment it does not

reach the class issue. After a brief outline of the facts which

A24

are not in dispute, the sole legal issue presented by this case

shall be discussed.

The defendant, Talman, is a savings and loan association with

its main office located in Chicago. The association, which has _

eight branch offices, employs approximately 800 persons. Plain-

tiff challenges defendant’s policy that requires females to wear

certain kinds of dress. Although she characterizes this policy

as a “uniform policy” it is readily apparent that female em-

ployees have far more discretion than they would if they were

required to wear uniforms. Under the policy, females are per-

mitted to wear five basic items in any combination they choose.

Females must wear either a color coordinated skirt or slacks and

either a jacket, tunic or vest. The skirt can be pleated, gored, or

straight. The tunic can be belted or unbelted. Choice of blouses,

sweaters and hosiery is subject to the discretion of the female

employees. These “career ensembles” are required to be worn

every business day except the last Tuesday of every month

and a week in August and the week between December 25 and

January 1. These two weeks are called glamour days and female

employees are required to wear “appropriate business attire” at

those times.

Until March, 1974 defendant paid half the cost of the uni-

form while the employee was required to pay the other half.

Since March, 1974 defendant has paid the cost of one ensemble

for each employee. However, the defendant treats the delivery

of such uniforms as income and withholds the amount from

each woman’s pay based upon the value of the uniform. If em-

ployees wish additional items, they must purchase them at their

own expense. Of a total of 675 teller, office and managerial

personnel, 525 are women who must wear the ensembles. This

group includes a senior vice-president and treasurer of defendant.

The men are not required to wear a career ensemble of any

kind. From approximately 1958 to 1969, defendant supplied

suits to its male tellers and required that they be worn during

work. The program was discontinued at the request of the male

A25

tellers. The defendant’s dress code policy currently requires that

men wear business suits or a combination of a business-type sport

jacket and pants. Ties are also required to be worn. Men receive

no dispensation from this requirement on the last Tuesday of

each month or during the so-called glamour days. The dress

code does not further define what a business suit or business-

type sport coat is.

The branch or home office manager determines what is or is

not appropriate business attire on a strictly ad hoc basis. The

manager determines the appropriateness of the females’ discre-

tionary choices in the same manner. Defendant’s personnel

manager testified at his disposition that certain managers had

permitted males to wear “leisure” type suits as long as they

wore ties.

Plaintiff was hired March 5, 1973 as a part-time employee.

From 1973 to 1976, she attended De Paul University while

working for the defendant from 14 to 18 hours per week, Prior

to May 11, 1976 plaintiff conformed to defendant’s dress code.

On May 11, 14 and 18 plaintiff appeared at work dressed in

appropriate business attire. On May 21, she stated to her

superiors that she no longer intended to wear the “uniform.”

On May 22 she received a written memorandum from her

superiors that stated she would be indefinitely suspended with-

out pay until she donned her “career ensemble.” Up to that

time plaintiff had been considered a model employee who

performed all of her duties satisfactorily. The sole reason for

her suspension was her refusal to wear any of the career en-

semble coordinated dress. Plaintiff was graduated from DePaul

in June of 1976 and has been employed by the City of Chicago

as a substitute teacher since September of 1976. She intends to

return to Talman after resolution of her case on a part-time

basis.

_ The case before the court appears to be one of first impres-

sion. The parties have not cited to the court, nor has the court

in its own research discovered a case which is factually apposite.

A26

The precise issue before the court is whether a dress code which

is applicable to both men and women but is more restrictive as

to women violates Title VII. In considering such a question, the

court is guided by the general precept that Title VII must be

construed liberally to achieve its objectives. See Reeb v. Eco-

nomic Opportunity Atlanta, Inc., 516 F.2d 924, 929 (Sth

Cir. 1975). The court must also note that Title VII requires

“an interpretation animated by the broad humanitarian and

remedial purposes underlying the federal proscription of em-

ployment discrimination.” Coles v. Penny, 174 U.S. App. D.C.

277, 285, 531 F. 2d 609, 616 (1976).

In forbidding employers to discriminate against individuals

because of their sex, Congress intended to strike at the

entire spectrum of disparate treatment of men and women

resulting from sex stereotypes. Section 703(a) (1) subjects

to scrutiny and eliminates such irrational impediments to

job opportunities and enjoyment which have plagued

women in the past.

Sprogis v. United Air Lines, Inc., 444 F.2d 1194, 1198 (7th

Cir. 1971), cert. denied, 404 U.S. 991, 92 S.Ct. 536, 30

L. Ed. 2d 543 (1972).

Pointing to such language in Sprogis and other cases which

are factually inapposite, plaintiff argues that Title VII mandates

the elimination of any terms or conditions of employment which

treat similarly situated male and female employees differently.

Specifically, plaintiff argues defendant by its dress codes has

isolated one group on the basis of sex. The direct consequence

of this policy is to establish different terms and conditions of

employment for men and women. Defendant counters that em-

ployer specifications requiring different modes of dress and

grooming for men and women do not constitute sex discrimina-

tion. Inasmuch as the defendant’s dress code does not significantly

impair employment opportunities or benefits of either sex, de-

fendant argues, it is not cognizable under Title VII even though

such code makes different requirements on the basis of sex.

A27

At the outset it must be noted that there is no suggestion in

the present case that the differing standard is a mere pretext for

limiting employment to one sex. A claim that a dress code was

created and enforced for such a purpose would state a claim

under Title VII. See Earwood v. Continental Southeastern Lines,

Inc., 539 F. 2d 1349, 1351 (4th Cir. 1976); Jarrell v. Eastern

Air Lines, Inc., 430 F. Supp. 884, 892 (E. D. Va. 1977). In-

deed in the present case, the vast majority of employees of

defendant are women.

[1] Although there are no cases factually apposite, the

general rule appears settled that distinctions based on sex in

dress codes do not violate Title VII. “It is clear that regulations

promulgated by employers which require male employees to

conform to different grooming and dress standards than female

employees is not sex discrimination within meaning of Title

VII.” Fountain v. Safeway Stores, Inc., 555 F.2d 753, 755

(9th Cir. 1977). See also Barker v. Taft Broadcasting Co., 549

F. 2d 400 (6th Cir. 1977); Earwood v. Continental Southeast-

ern Lines, Inc., 539 F.2d 1349 (4th Cir. 1976); Longo v.

Carlisle DeCoppet & Co., 537 F. 2d 685 (2d Cir. 1976) (per

curiam); Knott v. Missouri Pacific Railroad Co., 527 F.3d

1249 (8th Cir. 1975); Willingham v. Macon Telegraph Pub-

lishing Co., 507 F. 2d 1084 (Sth Cir. 1975) (en banc); Baker

v. California Land Title Co., 507 F.2d 895 (9th Cir. 1974),

cert. denied, 422 U.S. 1046, 95 S. Ct. 2664, 45 L. Ed. 2d 699

(1975); Dodg? v. Giant Food, Inc., 160 U.S. App. D.C. 9,

488 F. 2d 1333 (1973) (per curiam); Fagan v. National Cash

This rule is premised on the fact that such restrictions do not

amount to a restriction in employment opportunity. The intent

of Congress in enacting Title VII was to ensure that all males

and females have equal job opportunities.

We perceive the intent of Congress to have been the

guarantee of equal job opportunity for males and females.

Providing such opportunity is where the emphasis rightly

A28

lies. This is to say [Title VII] should reach any device or

policy of an employer which serves to deny acquisition

and retention of a job or promotion in a job to an indi-

vidual because the individual is either male or female.

eS * * * *

. .. Equal employment opportunity may be secured only

when employers are barred from discriminating against

employees on the basis of immutable characteristics, such

as race or national origin. Similarly, an employer cannot

have one hiring policy for men and another for women if

the distinction is based on some fundamental right. But

a hiring policy that distinguishes on some other ground,

such as grooming codes or length of hair, is related more

closely to the employer’s choice of how to run his business

than to equality of employment opportunity.

Willingham v. Macon Telegraph Publishing Co., 507 F.2d at

1091 [emphasis in the original]. See also Earwood v. Continental

Southeastern Lines, Inc., 539 F. 2d at 1351.

Plaintiff attempts to distinguish the above cases by arguing

that in most of them there was not a complete relationship

between gender and the regulation and that therefore there was

no gender-based discrimination. For example, in the so-called

hair cases there are two classes: one class consists of long-haired

males; the second, females who are permitted to have long hair

and short-haired males. Not all the cases have such factual

distinctions. In Fountain, for example, the male plaintiff was

required to wear a tie. This requirement applied exclusively to

males as a class. There was a complete relationship between

gender and the regulation. The court ruled there was no viola-

tion. In Jerrell v. Eastern Air Lines, Inc., 430 F. Supp. 884

(E. D. Va. 1977), a female flight attendant challenged the de-

fendant’s weight regulations which required that females be

lighter proportionately to the population than males. There was

again a differing, more onerous, standard applicable to females

A29

but not males. Noting that the airline weight program did not

limit employment opportunities for women, the court ruled

plaintiff had not established a violation of Title VII. See also

In Re National Airlines, Inc., 434 F.Supp. 269 (S. D. Fla.

1977) [no Title VII violation where only 22% of females in

the United States can meet the average maximum weight limita-

tions while 30% of the men in the United States could reach

the average maximum weight.]' As long as such practices are

not a bar to employment opportunity no violation exists. An

employer is not required to account for personal preference.

“We have then a situation where a male was indeed employed,

and with full knowledge of the company’s policy, insisted upon

performing his own work on his own terms and upon requiring

the company to accommodate to his projection of his own

image.” Fagan v. National Cash Register Co., 157 U.S. App.

D.C, at 22, 481 F. 2d at 1122.

Plaintiff also cites a series of cases where discrimination on

the basis of sex was found violative of the Act. In Sprogis v.

United Air Lines, Inc., 444 F. 2d 1194 (7th Cir. 1971), cert.

denied, 404 U. S. 991, 92 S. Ct. 536, 30 L. Ed. 2d 543 (1972),

the defendant airline had a no marriage policy for its female

employees. Male flight attendants were not subject to a similar

regulation. The plaintiff, a female flight attendant, was dis-

charged after she was married. In Allen v. Lovejoy, 553 F. 2d

522 (6th Cir. 1977) females were required upon marriage to

sign certain forms changing their names to that of their hus-

bands. When the plaintiff refused, she was discharged. A female

. Plaintiff cites Laffey v. Northwestern Airlines, Inc., 366 F.

Supp. 763 (D. D. C. 1973) as the “closest case on point.” However,

Lafey involved a general policy of discrimination in pay, seniority

and the filling of job openings. The defendant also had a policy pro-

hibiting female cabin attendants from wearing eyeglasses and re-

quiring that females use a different type of luggage than males. The

focus on the case was on violations of the Equal Pay Act, 29

U.S.C. § 206(d) as well as Title VII. Laffey did not discuss a

dress code applicable to both sexes but more restrictive as to one.

To the extent, if any, that Laffey applies in this case, therefore, this

court declines to follow it.

A30

was discharged after refusing to comply with the sexual ad-

vances of her superior in Barnes v. Costle, 183 U.S. App. D. C.

90, 561 F. 2d 983 (1977).* The above cases are distinguish-

able on two grounds, First, in each case the requirement applied

exclusively to one gender-based class entirely excluding the

other. In the present case, the regulation is applicable to both

classes, but merely places a different restriction on one class.

Second, in each case the regulation discriminated against a

sexual class for the exercise of a fundamental right or operated

to infringe a traditionally protected privacy interest.

Discrimination based on either immutable sex character-

istics or constitutionally protected activities such as mar-

riage or child rearing violate [Title VII] because they

present obstacles to employment of one sex that cannot

be overcome. On the other hand, discrimination based

upon factors of personal preference does not necessarily

restrict employment opportunities and this is not forbidden.

Earwood v. Continental Southeastern Lines, Inc., 539 F. 2d at

1351. Clearly, wearing a particular mode of clothing does not

amount to a fundamental right. Although the right to wear a

certain mode of dress is clearly constitutionally protected, such

protection does not normally extend to deprivations by private

employers. Id. at 1351.8

2. See also Phillips v. Martin Marietta Corp., 400 U.S. 542,

91 S. Ct. 496, 27 L. Ed. 2d 613 (1971) (per curiam) [employee’s

policy of accepting applications from men with pre-school children

but not from women violated Title VII].

3. This case does not involve seemingly neutral characteristics

which operate to prevent females from gaining employment as in

Dothard v. Rawlinson, 433 U.S. 321, 97 S. Ct. 2720, 53 L. Ed. 2d

786 (1977). In Dothard, the statutory height and weight require-

ments applied equally to men and women. The Court held statistical

proof that the requirements would eliminate 41.14 percent of the

female population from consideration for employment while eliminat-

ing less than one percent of the male population established a prima

facie case of discrimination. Here, the plaintiff has gained employ-

ment but must wear certain clothing as a condition to employment.

Such a requirement does not constitute “artificial, arbitrary, and

(Footnote continued on next page.)

A31

[2] Defendant’s requirements do not prevent employment

opportunity. The court, therefore, holds there is no Title VII

violation where an employer discharges an employee who re-

fused to abide by dress regulations which are in fact applicable

to both sexes but as to one sex imposes a more defined standard

of uniformity. Accordingly, defendant’s motion for summary

judgment is granted and this case is dismissed. Judgment is

entered for the defendant.

It is so ordered.

(Footnote continued from preceding page.)

unnecessary barriers” to employment. Griggs v. Duke Power Co.,

401 U.S. at 431, 91 S.Ct. 849, 28 L.Ed. 2d 158 [emphasis

supplied].

A32

~APPENDIX C

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

Chicago, Illinois 60604

October 18, 1979.

Before

Hon. THomas E, FAIRCHILD, Chief Judge

Hon. LATHAM CASTLE, Senior Circuit Judge*

Hon. LUTHER M. SwyGerT, Circuit Judge

Hon. WALTER J. CUMMINGS, Circuit Judge

Hon. WILBUR F. PELL, JR., Circuit Judge

Hon. RoBErRT A. SPRECHER, Circuit Judge

Hon. PHitip W. Tong, Circuit Judge

Hon. WILLIAM J. BAUER, Circuit Judge

Hon. HARLINGTON Woob, Jr., Circuit Judge

Hon. RICHARD D. CuDAHY, Circuit Judge

) Appeal from the

Mary CARROLL, United States Dis-

Plaintiff-A ppellant, trict Court for the

Northern District of

No. 78-1458 VS. Illinois, Eastern -Di-

4 vision.

TALMAN FEDERAL SAVINGS AND LOAN No. 76 C 1729

ASSOCIATION OF CHICAGO,

Defendant-Appellee. Joel M. Flaum,

Judge.

ORDER

On consideration of the petition for rehearing and suggestion

for rehearing en banc filed in the above-entitled cause by de-

* Judge Castle voted as a member of the panel but did not

participate in the vote on the rehearing en banc suggestion.

A33

fendant-appellee, Talman Federal Savings and Loan Association

of Chicago, a vote of the active members of the Court was

requested, and a majority of the active members of the Court

have voted to deny a rehearing en banc. A majority of the

judges on the original panel have voted to deny the petition for

rehearing. Accordingly,

IT Is ORDERED that the aforesaid petition for rehearing be,

and the same is hereby, DENIED.

Judges Pell, Tone and Bauer voted to grant the petition for

rehearing en banc. —

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.