Sex Stereotyping Ruling from the Eighth Circuit

Lewis v. Heartland Inns of America, L.L.C., No. 08-3860 (8th Cir. Jan. 21, 2010)

Contributor - Jessica Cervenka

The United States Eighth Circuit Court of Appeals recently heard arguments on whether an employee can be fired based on sex stereotyping. In the case, Plaintiff Brenna Lewis worked for Heartland Inns of America where she started on the night shift at the front desk. Lewis was awarded merit-based pay raises and all of her direct supervisors praised her work performance. Eventually Lewis’ direct supervisor, Lori Stifel, offered her a fulltime position on the A shift which was during the hours of 7:00 a.m. to 3:00 p.m. Stifel received authorization to promote Lewis by Heartland’s Director of Operations, Barbara Cullinan, who had never met Lewis and was relying on Stifel’s recommendations. Stifel did not conduct a secondary interview and Cullinan did not tell her to conduct one. Lewis took over the front desk position at the end of December 2006.

When Cullinan saw Lewis for the first time, she began questioning Lewis on her appearance. Cullinan told Stifel that Lewis lacked the “Midwestern girl look” and that front desk employees should be “pretty.” Lewis preferred to wear looser fitting clothing, no makeup and short hair. Stifel called it “an Ellen DeGeneres kind of look.” Cullinan told Stifel to put Lewis back on the overnight shift, but Stifel refused because Lewis had done “a phenomenal job.”

At about the same time as the above-stated matters in question, Heartland changed its policy requiring second interviews for the front desk position and bought video equipment so either Cullinan or Heartland’s Human Resource Director, Kristi Nosbisch, could see applicants before they are offered employment for the front desk position.

After working for a period of time at the work desk position, Lewis was told she would be required to submit to a second interview. Lewis protested that other staff members were not required to submit to secondary interviews and the only reason she was targeted for such an interview was because she lacked the “Midwestern girl look.” Lewis and Cullinan then talked about the loss of revenue the company had been noticing. While Cullinan was blaming the losses on the general managers like Stifel, Lewis believed it was because of new company policies banning smoking and pets. Lewis was fired three days after her meeting with Cullinan.

Heartland’s termination letter stated that Lewis had thwarted the new interview procedure and had shown aggression towards Heartland’s new policies. Lewis had zero customer complaints and no disciplinary actions against her. Lewis claimed that she was fired because she did not conform to sex stereotypes, not because of the reasons stated in her termination letter. Lewis claim that the actions of her employer violated Title VII of the Civil Rights Act of 1964 which prohibits an employer from “discriminating against any individual with respect to [] compensation, terms, conditions, or privileges of employment because of sex.”

The McDonnell Douglas Corp. v. Green framework applied to Lewis’ case in federal court. Under this framework Lewis had to prove 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.” After hearing the arguments of the parties, the court held that Cullinan’s descriptions of Lewis as lacking “prettiness” and the “Midwestern girl look” may be used as reasonable evidence of wrongful sex stereotyping in violation of Title VII. The appellate court found that the district court erred in requiring Lewis to offer evidence that men similarly situated were treated differently. The Eighth Circuit stated that “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.” The court further found that the terms of Heartland’s termination of Lewis were pretextual because Lewis had a history of good performance, no prior disciplinary record and received two merit based raises.

In order for Lewis to make a prima facie retaliation claim in federal court she did not need to prove the merits of the underlying claim of sex discrimination. The court held that Lewis can establish protected conduct “as long as [she] had reasonable, good faith belief that there were grounds for a claim of discrimination.” Lewis had entered the meeting with Cullinan knowing of the comments about her lack of the “Midwestern girl look” and knew other transferred employees were not being submitted to the second interview process. Heartland argued that Lewis’ comments during her meeting with Cullinan did not oppose any unlawful practice.

The court found that Lewis provided sufficient evidence to make out a prima facie claim for sex discrimination and retaliation and that Lewis had a sufficient showing of evidence that Heartland’s reasons for her termination were pretextual. The court reasoned that an employer must prove that appearance is a bona fide occupational qualification and Heartland would have to prove that the “Midwestern girl look” and “prettiness” were bona fide occupational qualifications for the front desk position.

In dissent, Chief Judge Loken wrote that the idea that an employer has to prove that physical appearance is a bona fide occupational qualification is a misreading of Price Waterhouse v. Hopkins. Judge Loken reasoned that

"Apparently, the majority would hold that an employer violates Title VII if it declines to hire a female cheerleader because she is not pretty enough, or a male fashion model because he is not handsome enough, unless the employer proves the affirmative defense that physical appearance is a bona fide occupational qualification. Like the district court, I conclude this is an unwarranted misreading of the plurality and concurring opinions in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). In my view, an employer's decision to hire or fire based on a person's physical appearance is not discrimination "because of . . . sex" unless it is a pretext for disadvantaging women candidates, as the trial court found in Price Waterhouse v. Hopkins. As there is no evidence of that here, I would affirm for the reasons stated in the district court's persuasive and thorough Order on Motion for Summary Judgment dated November 13, 2008."

As a business owner, great caution must be taken in considering physical traits of employees in making employment decisions or in finding that physical appearance is a occupational qualification. If an employer does establish an employment policy related to physical appearances, the employer must be aware that the indicated physical appearance requirements must be bona fide occupational qualifications for that position and be necessary for the normal operation of the business. Great care and knowledgeable counsel should be employed to review such proposed policies or procedures before their enactment by a company.