Willingham v. Macon Telegraph Publishing Co.

482 F.2d 535, 5 Fair Empl. Prac. Cas. (BNA) 1329, 1973 U.S. App. LEXIS 9096, 6 Empl. Prac. Dec. (CCH) 8936
CourtCourt of Appeals for the Fifth Circuit
DecidedJune 28, 1973
DocketNo. 72-2078
StatusPublished
Cited by23 cases

This text of 482 F.2d 535 (Willingham v. Macon Telegraph Publishing Co.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Willingham v. Macon Telegraph Publishing Co., 482 F.2d 535, 5 Fair Empl. Prac. Cas. (BNA) 1329, 1973 U.S. App. LEXIS 9096, 6 Empl. Prac. Dec. (CCH) 8936 (5th Cir. 1973).

Opinions

WISDOM, Circuit Judge:

This case presents the question whether an employer’s grooming code requiring male job applicants to adhere to a hair style different from that required of female job applicants constitutes sex discrimination in violation of section 703 of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2. The district court, 352 F.Supp. 1018, held that Title VII did not prohibit an employer from refusing to hire a male applicant because of his hair length while at the same time not imposing similar limits on the hair length of female applicants. We reverse and remand.

I.

Alan Willingham, the plaintiff-appellant, is a twenty-two year old white male and an artist by trade. On July 28, 1970, Willingham applied for the position of display or layout artist in the retail advertising department of the Macon Telegraph Publishing Company, a newspaper publishing company in Macon, Georgia. Willingham contended that he was qualified for the position because he had passed all tests administered to him by the company and had prior experience as a copy layout artist with two other companies. The company, however, refused to hire him.

On July 30, 1970, Willingham filed a complaint with the Equal Employment Opportunity Commission alleging that the company had violated section 703 of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2 by discriminating in employment on the basis of sex. Willingham asserted that the sole reason for the company’s refusal to hire him for the position of layout artist was his shoulder length hair. Willingham argued that since the company imposed no restrictions on the hair length of female applicants, the company’s action constituted sex discrimination. After investigating the complaint, the Commission found that there was reasonable cause to believe that the company had violated section 703 of the Act by refusing to hire the plaintiff. The Commission advised Willingham that he was entitled to file suit.

On December 17, 1971, Willingham initiated the present action in the district court and reiterated his contention that he had been the victim of sex discrimination in violation of section 703 of the Civil Rights Act of 1964 and the Civil Rights Act of 1870, 42 U.S.C. §§ 1981, 1983. The company responded by filing a motion to dismiss the complaint for failure to state a cause of action and attached affidavits to the motion. The company asserted that it required applicants for employment and employees who come in contact with the general public to be neatly dressed and groomed [537]*537in accordance with the standards customarily accepted in the business community. The plaintiff’s hair length, the company contended, would be offensive to the company advertisers and customers and would injure the company’s business and good will in the community. Through various affidavits the company asserted that, at the time of Wil-lingham’s application, the community had been negatively influenced by a “pop festival” in the area attended by several hundred thousand long haired individuals. The company further argued that its action in refusing to hire Wil-lingham did not constitute sex discrimination.

The district court treated the company’s motion to dismiss as one for summary judgment and granted time to allow both parties to submit additional affidavits and other supporting evidence. Willingham then filed a motion for partial summary judgment.

On April 17, 1972, the district court rendered its decision granting summary judgment in favor of the company. The court held that even if all the allegations in the plaintiff’s complaint were taken as true, the company was entitled to judgment as a matter of law since the Civil Rights Acts were not intended to deprive employers of their “fundamental right ... to proscribe reasonable grooming standards which take cognizance of societal mores.” The plaintiff appealed in forma pauperis.

II.

The principal issue on appeal is whether the company’s grooming code for hair length constitutes sex discrimination in violation of section 703 of the Civil Rights Act of 1964, 42 U.S.C. § 20006-2.1 Section 703 provides, in pertinent part:

(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 . . . sex . . .; 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 adversely affect his status as an employee, because of such individual’s . sex . ... 42 U.S.C. § 2000e-2.

The company contends that its grooming code does not discriminate on the basis of sex because both sexes are treated equally: all applicants and employees are required to groom their hair according to the prevailing community standard. It is argued that the discrimination, if any, is between long and short haired males and not between males and females. We disagree.

In enacting section 703, Congress intended to insure equal access to the job market for both men and women. Diaz v. Pan American World Airways, Inc., 5 Cir. 1971, 442 F.2d 385, cert. denied 404 U.S. 950, 92 S.Ct. 275, 30 L.Ed.2d 267. In essence, this means that “persons of like qualifications must be given employment opportunities irrespective of their sex”. Phillips v. Martin Marietta Corp., 1971, 400 U.S. 542, 544, 91 S.Ct. 496, 27 L.Ed.2d 613. Section 703, therefore, is not limited to situations in which the employer’s discriminatory employment practice is based solely on sex2 but extends to all differences in the treatment of men and women resulting from sex stereotypes.3 [538]*538Sprogis v. United Air Lines, 7 Cir. 1971, 444 F.2d 1194, cert. denied 404 U.S. 991, 92 S.Ct. 536, 30 L.Ed.2d 543. An employment practice may be discriminatory even if it “adversely affects only a portion of the protected class.” Id. at 1198. In Phillips v. Martin Marietta Corp., supra, for example, the Supreme Court held that the defendant company’s policy of not accepting job applications from women with pre-school age children discriminated on the basis of sex. The Court stated that Title VII did not permit “one hiring policy for men and another for women — each having preschool age children.” 400 U.S. at 544, 91 S.Ct. at 498. Similarly, in Sprogis v. United Air Lines, supra, the court held that an employer’s rule requiring that stewardesses be unmarried, while the same policy was not applied to stewards, constituted sex discrimination in violation of Title VII.

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Bluebook (online)
482 F.2d 535, 5 Fair Empl. Prac. Cas. (BNA) 1329, 1973 U.S. App. LEXIS 9096, 6 Empl. Prac. Dec. (CCH) 8936, Counsel Stack Legal Research, https://law.counselstack.com/opinion/willingham-v-macon-telegraph-publishing-co-ca5-1973.