Sunday, February 21, 2010

Fired for Looking Like Ellen DeGeneres?

A worker fired for looking "too much like Ellen DeGeneres" may win sex her discrimination case. See Lewis v. Heartland Inns of America, L.L.C., et al., No. 08-3860 (8th Cir., Jan. 21, 2010)

Alleging that she lost a job she had done well, solely because of unlawful sex stereotyping, Brenna Lewis brought this action for sex discrimination and retaliation against her former employer Heartland Inns of America, its Director of Operations and its Human Resource Director based on Title VII and state law. Viewing the facts in the light most favorable to Lewis, the Court of Appeals for the Eighth Circuit stated the case this way:

Worker performs well

Heartland Inns operates a group of hotels, primarily in Iowa. Brenna Lewis began work for Heartland in July 2005 and successfully filled several positions for the chain for a year and a half before the actions at issue here.

She started as the night auditor at Heartland's Waterloo Crossroads location; at that job she worked at the front desk from 11:00 p.m. to 7:00 a.m. There were also two other shifts for "guest service representatives": the A shift from 7:00 a.m. to 3:00 p.m. and the B shift from 3:00 p.m. to 11:00 p.m.

Lewis' manager at Waterloo Crossroads, Linda Gowdy, testified that Lewis "did her job well" and that she had requested a pay raise for her. Heartland recorded two merit based pay raises for Lewis. The record also indicates that Gowdy received a customer comment praising Lewis.

Good worker makes good impression

On or about December 7, 2006, Lewis began working various part time front desk shifts at Heartland Inns located near Des Moines, including at Ankeny and Altoona. At both locations she was valued by her direct supervisors. Her manager at the Altoona hotel, Jennifer Headington, testified that Lewis "made a good impression[.]"

She offered her a full time night auditor position after receiving telephone permission from Barbara Cullinan, Heartland's Director of Operations. Lori Stifel, Lewis' manager at the Ankeny hotel, testified in her deposition that Lewis did a "great job" in Ankeny, "fit into the [front desk] position really well" and was well liked by customers.

Stifel received permission over the phone from Cullinan on December 15 to offer Lewis a full time A shift position. Neither Headington nor Stifel conducted an interview of Lewis before extending their offers, and the record does not reflect that Cullinan ever told them a subsequent interview would be necessary.

Lewis accepted the offer for the A shift at Ankeny and began training with her predecessor, Morgan Hammer. At the end of December 2006 Lewis took over the job.

Looks too much like Ellen DeGeneres?

Lewis' positive experience at Heartland changed only after Barbara Cullinan saw her working at the Ankeny desk. As the Director of Operations, Cullinan had responsibility for personnel decisions and reported directly to the general partner of Heartland. She had approved the hiring of Lewis for the Ankeny A shift after receiving Stifel's positive recommendation.

After seeing Lewis, however, Cullinan told Stifel that she was not sure Lewis was a "good fit" for the front desk.

Cullinan called Stifel a few days later and again raised the subject of Lewis' appearance.

Lewis describes her own appearance as "slightly more masculine," and Stifel has characterized it as "an Ellen DeGeneres kind of look."

Lewis prefers to wear loose fitting clothing, including men's button down shirts and slacks. She avoids makeup and wore her hair short at the time. Lewis has been mistaken for a male and referred to as "tomboyish."

Cullinan told Stifel that Heartland "took two steps back" when Lewis replaced Morgan Hammer who has been described as dressing in a more stereotypical feminine manner.

Not "pretty"
enough to work at the front desk?

As Cullinan expressed it, Lewis lacked the "Midwestern girl look." Cullinan was heard to boast about the appearance of women staff members and had indicated that Heartland staff should be "pretty," a quality she considered especially important for women working at the front desk.

Cullinan also had advised a hotel manager not to hire a particular applicant because she was not pretty enough.

Job description doesn't mention appearance

The front desk job description in Heartland's personnel manual does not mention appearance. It states only that a guest service representative "[c]reates a warm, inviting atmosphere" and performs tasks such as relaying information and receiving reservations.

Ordered to overnight shift?

In her conversation with Stifel about Brenna Lewis, Cullinan ordered Stifel to move Lewis back to the overnight shift.

Stifel refused because Lewis had been doing "a phenomenal job at the front desk[.]"

The following week, on January 9, 2007, Cullinan insisted that Lori Stifel resign.

Around this time, Heartland informed its general managers that hiring for the front desk position would require a second interview.

Video interviews required?

Video equipment was also purchased to enable Cullinan or Kristi Nosbisch, Heartland's Human Resource Director, to see an applicant before extending any offer.

When Lewis' former manager at Altoona, Jennifer Headington, raised a question about the new arrangements, Cullinan answered that "[h]otels have to have a certain personification and appearance."

Cullinan met with Brenna Lewis on January 23, 2007. At this point Lewis had held the front desk job for nearly a month after Cullinan's initial approval of her hire for the position. The record contains no evidence of any customer dissatisfaction with Lewis or her service.

Nevertheless, Cullinan told Lewis at the meeting that she would need a second interview in order to "confirm/endorse" her A shift position. Lewis was aware from Lori Stifel of what had been said about her appearance, and she protested that other staff members had not been required to have second interviews for the job. Lewis told Cullinan that she believed a second interview was being required only because she lacked the "Midwestern girl look."

She questioned whether the interview was lawful, and she cried throughout the meeting.

Cullinan wanted to know who had told Lewis about the comment and asked whether it was Lori Stifel. Thereafter Cullinan talked about the need for new managers when revenue is down like in Ankeny, where Stifel was the manager. Lewis responded that recent policy changes by Heartland, including bans on smoking and on pets, might explain the loss in revenue. Cullinan then encouraged Lewis to share more of her views about the new policies and took notes on what she said.

She loses her job

Three days later, Lewis was fired.

Lewis does not challenge Heartland's official dress code, which imposes comparable standards of professional appearance on male and female staff members, and her termination letter did not cite any violation of its dress code.

Gender stereotypes to blame

The theory of her case is that the evidence shows Heartland enforced a de facto requirement that a female employee conform to gender stereotypes in order to work the A shift. There was no such requirement in the company's written policies.

Excuses for firing

In its termination letter to Lewis, Heartland asserted that she had "thwart[ed] the proposed interview procedure" and exhibited "host[ility] toward Heartland's most recent policies[.]" Lewis denies those charges and denies that those were the real reasons for her discharge.

There were no customer complaints about Lewis' performance as a desk clerk. Nor had there been any disciplinary action against her before she was fired.

Lewis asserts that Heartland terminated her for not conforming to sex stereotypes and contends that this conduct violated Title VII of the Civil Rights Act of 1964.

Court of Appeals reinstates case

Heartland was not entitled to prevail on summary judgment unless it showed that plaintiff Brenna Lewis had not produced direct or circumstantial evidence which could reasonably support an inference of discrimination, according to the court.

Proving discrimination

Title VII prohibits an employer from "discriminat[ing] against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of . . . sex.

Discrimination occurs when sex "was a motivating factor for any employment practice, even though other factors also motivated the practice."

To make a prima facie case of sex discrimination, Lewis had to show that:

(1) she was a member of the protected group;
(2) she was qualified to perform the job;
(3) she suffered an adverse employment action; and
(4) circumstances permit an inference of discrimination."

Such a showing creates a presumption of unlawful discrimination, requiring Heartland to produce a legitimate nondiscriminatory reason for its employment action.

Sex stereotyping can violate federal law

The U.S. Supreme Court has decided that sex stereotyping can violate Title VII when it influences employment decisions.

Other courts have also found sex specific impositions on women in customer service jobs such as this one illegal.

Stereotype 1: What women "should"wear

For example, violations of Title VII occurred in separate cases where:

1. a female lobby attendant was terminated for refusing to wear a sexually provocative uniform;

2. where only women employees were compelled to wear uniforms; and

3. where only female flight attendants were required to wear contact lenses instead of glasses.

Stereotype 2: Women "should" be thin

In a more recent example, in the Ninth Circuit in 2000, an airline policy requiring female flight attendants to be comparatively thinner than male attendants was found discriminatory.

Stereotype 3: Women "should" be more feminine

In Price Waterhouse, where a female senior manager was denied partnership, partners involved in their decision had referred to her as "'macho'" and in need of "'a course at charm school.'"

She was advised that to become a partner she should "'walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.'"

According to the court, such stereotypical attitudes violate Title VII if they lead to an adverse employment decision.

Like the plaintiff in Price Waterhouse, Lewis alleges that her employer found her unsuited for her job not because of her qualifications or her performance on the job, but because her appearance did not comport with its preferred feminine stereotype.

Other circuits have upheld Title VII claims based on sex stereotyping subsequent to Price Waterhouse.

4. Stereotype 4: Men "should" be masculine men

The Sixth Circuit's Smith case concerned a fire fighter who was born male but subsequently came to identify as a woman. When he began "to express a more feminine appearance" at work, he was told by colleagues that he was not "masculine enough[.]" His superiors then "devise[d] a plan" to terminate him, including an order that he submit to multiple psychological evaluations. If he did not consent, "they could terminate Smith's employment on the ground of insubordination."

Lewis similarly alleges that Heartland imposed a second interview and then used her objection to it against her when its real reason for terminating her was because she lacked the "Midwestern girl look" and was not pretty enough to satisfy Cullinan.

As the Sixth Circuit concluded in Smith, an adverse employment decision based on "gender non- conforming behavior and appearance" is impermissible under Price Waterhouse.

5. Stereotype 5: Women with children aren't committed enough

Likewise, in Chadwick, the First Circuit found a decisionmaker's explanation why the plaintiff had not received a promotion evidence that the decision was motivated by an illegal sex stereotype that women would prioritize child care responsibilities over paid employment. Chadwick, 561 F.3d at 42 (with four young children she had "'too much on her plate'"); see also id. at 44.

The Second Circuit similarly concluded in Back that the statement that a mother who received tenure "'would not show the same level of commitment [she] had shown because [she] had little ones at home'" showed discriminatory intent in the tenure decision. Back, 365 F.3d at 120.

6. Stereotype 6: Blondes are dumb

The Seventh Circuit found remarks characterizing conduct of a woman employee as "'you're being a blond[e] again today'" probative of sex discrimination in Lust v. Sealy, Inc., 383 F.3d 580, 583 (7th Cir. 2004).

Stereotyping comments may be evidence of discrimination

Cullinan's criticism of Lewis for lack of "prettiness" and the "Midwestern girl look" before terminating her may also be found by a reasonable factfinder to be evidence of wrongful sex stereotyping, according to the court.

She need not produce evidence that she was treated differently than similarly situated males, according to the court.

Courts "consistently emphasize that the ultimate issue is the reasons for the individual plaintiff's treatment, not the relative treatment of different groups within the workplace." Back, 365 F.3d at 121.

As the Supreme Court explained in Connecticut v. Teal, 457 U.S. 440, 453-54 (1982), "[t]he principal focus of [Title VII] is the protection of the individual employee, rather than the protection of the minority group as a whole."

Comparative evidence is not the exclusive means by which a plaintiff may establish an inference of discrimination.

Critical issue is sex based differential treatment

The touchstone inquiry remains whether circumstances permit a reasonable inference of discrimination, according to the court.

A woman alleging sex discrimination need not prove that men were not subjected to the same challenged discriminatory conduct or show that the discrimination affected anyone other than herself.

As the Sixth Circuit succinctly stated, an employer who discriminates against women because, for instance, they do not wear dresses or makeup, is engaging in sex discrimination because the discrimination would not occur but for the victim's sex.

According to the court, Lewis need only offer evidence that she was discriminated against because of her sex. "The question is whether Cullinan's requirements that Lewis be "pretty" and have the "Midwestern girl look" were because she is a woman. A reasonable factfinder could find that they were since the terms by their nature apply only to women."

The company's excuses don't fly

The court also found that evidence that Heartland's reason for the termination were pretextual include:

1. the fact that Lewis had a history of good performance at Heartland;

2. she had no prior disciplinary record and had received two merit based pay raises;

3. the two individuals who supervised her during the majority of her employment at Heartland both stated that they had no problem with her appearance, and

4. at least one customer had never seen customer service like that Lewis had provided.

On this record, a factfinder could infer a discriminatory motive in Heartland's actions to remove Lewis, according to the court.

Could a jury find sex discrimination?

The court clarified that at this stage of the case, the question is not whether Lewis will prevail on her claim but rather whether she has offered sufficient evidence from which a reasonable factfinder could find that she was discriminated against because of her sex.

The court then concluded that she has, for "an employer who discriminates against women because . . . they do not wear dresses or makeup, is engaging in sex discrimination because the discrimination would not occur but for the victim's sex."

Sex stereotypes insufficient

Companies may not base employment decisions for jobs such as Lewis' on sex stereotypes, just as Southwest Airlines could not lawfully hire as flight attendants only young, attractive, "charming" women "dressed in high boots and hot-pants. "

As the Supreme Court stated, "we are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group."

She could win?

In sum, the court concluded that Lewis has presented sufficient evidence to make out a prima facie case on her claims for sex discrimination and retaliation and a sufficient showing at this stage that Heartland's proffered reason for her termination was pretextual.

The Court of Appeals sent it back for a jury trial. Who knows what the jury will say.

Do you agree with the Court's analysis?

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