Gerdom v. Continental Airlines, Inc.

648 F.2d 1223, 26 Fair Empl. Prac. Cas. (BNA) 601, 31 Fed. R. Serv. 2d 1060, 1981 U.S. App. LEXIS 12118, 26 Empl. Prac. Dec. (CCH) 31,921
CourtCourt of Appeals for the Ninth Circuit
DecidedJune 22, 1981
DocketNo. 79-3215
StatusPublished
Cited by9 cases

This text of 648 F.2d 1223 (Gerdom v. Continental Airlines, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gerdom v. Continental Airlines, Inc., 648 F.2d 1223, 26 Fair Empl. Prac. Cas. (BNA) 601, 31 Fed. R. Serv. 2d 1060, 1981 U.S. App. LEXIS 12118, 26 Empl. Prac. Dec. (CCH) 31,921 (9th Cir. 1981).

Opinions

SNEED, Circuit Judge:

The plaintiffs contend that Continental Airlines’ weight requirements for its flight attendants violate Title VII of the Civil Rights Act of 1964,42 U.S.C. § 2000e et seq. (1976), because they discriminate on the basis of sex. They advance both adverse impact and disparate treatment arguments in support of their claim. We affirm the district court’s finding that the plaintiffs’ adverse impact claim is without merit. But we remand for consideration of the disparate treatment claim.

I.

FACTS AND PROCEDURAL BACKGROUND

Until 1973, Continental required that its flight hostesses, then an all female position, maintain their weight below maximum weights determined from a published height/weight chart. In the wake of Diaz v. Pan American World Airways, Inc., 442 F.2d 385 (5th Cir.), cert. denied, 404 U.S. 950, 92 S.Ct. 275, 30 L.Ed.2d 267 (1971), which held that a policy of only hiring women as flight attendants violated Title VII, Continental began hiring men and re-designated the position flight attendant rather than flight hostess. As of 1974, only two percent of Continental’s flight attendants were men, and they apparently still constitute a small minority. After Continental abandoned its height/weight chart in 1973 it required flight attendants to maintain their weight in a reasonable relationship to their height, bone structure, and age.

Carole A. Gerdom was a flight hostess for Continental from 1961 until 1971. Although her record was otherwise exemplary, she was suspended without pay eight times for exceeding her maximum weight. On March 22, 1971, she was terminated because she had exceeded her maximum weight for ninety days. Gerdom, who is 5'5V2" tall, weighed 146/2 pounds at that time, thirteen pounds above her maximum weight.

Gerdom sued Continental and her union, the Air Line Pilots Association (ALPA), in 1972, claiming that her termination constituted unlawful sex discrimination under Title VII. She sought to represent a class of flight attendants who had been suspended or terminated for failure to conform to Continental’s weight requirements. More than eight flight hostesses or attendants have been terminated for violating the weight requirements and more than 145 have been suspended for that reason since Gerdom tolled Title VII’s statute of limitations. The court dismissed the suit against the union in 1973. ALPA subsequently filed suit against Continental on behalf of flight attendants who had been suspended or terminated for exceeding their maximum weight. Gerdom’s suit and the union’s suit were consolidated, and the Union of Flight Attendants was substituted as a plaintiff in place of ALPA in 1977 after it replaced ALPA as the bargaining representative for the affected employees. The plaintiffs here challenge both the pre-1973 weight requirements, based on the height/weight chart, and the post-1973 requirements, based on the reasonable relationship to height, weight, and bone structure.

The district court denied Gerdom’s motion to certify a class on November 19,1973. [1226]*1226The judge stated that the class should only consist of those women who had been terminated for failing to meet their weight requirement and should not include those who had merely been suspended. Since only eight women had been terminated, the numerosity requirement of Rule 23 of the Federal Rules of Civil Procedure was not satisfied.

The district court granted partial summary judgment in favor of plaintiffs on September 10, 1974. It concluded that the weight requirements violated Title VII because they only applied to women prior to 1972, since there were no male flight attendants then, and, since there were few male flight attendants in 1974, the requirements had a disproportionate adverse impact on women after 1972. The district court declined to issue an injunction barring Continental from enforcing its weight program, however, because it concluded that if Continental hired more male flight attendants its weight requirements would no longer have a disproportionate impact on women.

The district court judge who had issued these decisions died. Thereafter, the case was placed before another judge. This court reconsidered the decisions and, on November 27,1978, vacated the decision granting partial summary judgment to plaintiffs. It rejected the conclusion that the weight requirements had a disproportionate adverse impact on women because there was no allegation that the requirements were more strictly applied to female flight attendants than to male flight attendants. It concluded that Continental was discriminating on the basis of weight rather than sex. Because Title VII does not bar weight discrimination, the court entered summary judgment in favor of Continental.

We agree that Continental’s weight requirements had no adverse impact on women. But, in rejecting the first judge’s finding of adverse impact, the district court failed to consider the plaintiffs’ disparate treatment claim. The plaintiffs claim that the imposition of weight requirements on flight attendants, a predominantly female position, constitutes unlawful disparate treatment when no requirements or more lenient requirements are imposed on predominantly male positions such as directors of passenger service (DPSs), sales agents, and pilots. We remand for consideration of this claim. We also reverse the denial of class certification and order the district court to certify a class consisting of female flight attendants who were suspended or terminated.

II.

SEX DISCRIMINATION

A. Adverse Impact

The plaintiffs argue that Continental’s weight policy had an adverse impact on women under Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971), and Dothard v. Rawlinson, 433 U.S. 321, 97 S.Ct. 2720, 53 L.Ed.2d 786 (1977). But as the district court concluded, there was no adverse impact. In Griggs, blacks challenged an employer’s use of educational and intellectual requirements. The Court held that the requirements violated Title VII because they operated to exclude more blacks than whites from desirable jobs and there was no business necessity for the requirements. 401 U.S. at 429-33, 91 S.Ct. at 852-853. In Dothard, women challenged height and weight requirements for positions in Alabama’s prison system that excluded forty percent of the female population but only one percent of the male population. Because the requirements tended to exclude women, they were found unlawful for certain jobs that did not involve direct contact with male prisoners. 433 U.S. at 331-32, 97 S.Ct. at 2727-2728. These cases are inapplicable because Continental’s weight requirements have not excluded women as a class from jobs as flight attendants. Some women have been excluded, but that exclusion has been on the basis of weight only. Prior to 1972, the weight requirements could not have restricted employment opportunities for women as a class because only women were hired for the position.

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648 F.2d 1223, 26 Fair Empl. Prac. Cas. (BNA) 601, 31 Fed. R. Serv. 2d 1060, 1981 U.S. App. LEXIS 12118, 26 Empl. Prac. Dec. (CCH) 31,921, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gerdom-v-continental-airlines-inc-ca9-1981.