Earwood v. Continental Southeastern Lines, Inc. , 539 F.2d 1349 ( 1976 )

BUTZNER, Circuit Judge:

Continental Southeastern Lines, Inc., appeals from a judgment of the district court awarding back pay and ordering Continental to cease enforcing its hair length regulation for male bus drivers. We reverse because we are persuaded that sex-differentiated grooming standards do not, without more, constitute discrimination under Title VII of the Civil Rights Act of 1964.

Continental employs men and women in several different job categories. At the time of this suit, however, only men were bus drivers.¹ Other employees are subject to a general grooming regulation requiring them to be neat and clean and groomed in a manner commensurate with their jobs. Drivers are subject to a separate standard, which requires them to “report for work cleanly shaved with a trim haircut, a clean shirt, shoes polished, and a clean, neat uniform.”² As a result of these standards, both men and women in other job classifications are allowed to have longer hair than the drivers.

Earwood, a bus driver, was taken off several runs in October 1972 until his hair was cut. He was again held off of his run in December because of his hair style. He then filed this suit.³ The district court described Earwood’s hair as “ ‘modishly full’ . It was combed over his ears and was thick upon his neck, but not so long as to fall about his shoulders.” The district court held that Continental’s regulations stemmed from “sex stereotypes” and discriminated against Earwood in violation of Title VII.

To establish a claim of sex discrimination under 42 U.S.C. § 2000e-2, a two-step analysis must be undertaken.^{4 5}The first question is whether sex discrimination within the meaning of the statute has occurred. If so, the employer must then demonstrate a “bona fide occupational qualification” justifying the practice. See Dodge v. Giant Food, Inc., 160 U.S.App.D.C. 9, 488 F.2d 1333, 1335 (1973).

Earwood does not contend that Continental uses its hair length regulation as a pretext for limiting employment of one sex. Since all of its drivers are male, the rule obviously has no such effect. Instead, it is argued, the regulation deprives some men of employment because it enforces a sex stereotype. Such discrimination is based on a combination of sex and a facially neutral factor. Under this theory, regulations limiting employment of women with small children or who are married, but not restricting men similarly situated, have been struck down. See Phillips v. Martin Marietta Gorp., 400 U.S. 542, 91 S.Ct. 496, 27 L.Ed.2d 613 (1970); Sprogis v. United Airlines, Inc., 444 F.2d 1194 (7th Cir. 1971).

These cases, however, involve factors significantly different from hair length. The objective of Title VII is to equalize employment opportunities. Griggs v. Duke Power Co., 401 U.S. 424, 429-30, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971). Consequently, discrimination based on either immutable sex characteristics or constitutionally protected activities such as marriage or child rearing violate the Act because they present obstacles to employment of one sex that cannot be overcome. On the other hand, discrimination based on factors of personal preference does not necessarily re-strict employment opportunities and thus is not forbidden. See Willingham v. Macon Telegraph Publishing Co., 507 F.2d 1084, 1091 (5th Cir. 1975).

Employing this analysis, we hold that a sex-differentiated hair length regulation that is not utilized as a pretext to exclude either sex from employment does not constitute an unlawful employment practice as defined by Title VII.⁵ Hair length is not an immutable characteristic for it may be changed at will. Unlike the practices forbidden in Phillips and Sprogis, this regulation does not affect a fundamental right of Earwood’s. The right to wear long hair is clearly protected against government interference. Massie v. Henry, 455 F.2d 779 (4th Cir. 1972). But as against an employer, even a government employer, a grooming regulation will be sustained unless the decision to enact the regulation or the regulation itself “is so irrational that it may be branded ‘arbitrary,’ and therefore a deprivation of respondent’s ‘liberty’ interest in freedom to choose his own hair style.” Kelley v. Johnson, 425 U.S. 238, 248, 96 S.Ct. 1440, 1446, 47 L.Ed.2d 708 (1976).

Four courts of appeals have concluded that male hair length regulations alone do not violate Title VII.⁶ We follow their sound reasoning.

Accordingly, the judgment of the district court is reversed.

1 . Continental says that the lack of women drivers is fortuitous since there are no restrictions barring them. No claim of discrimination against women is involved in this case.

2 . With regard to hair length, the company has interpreted this regulation as follows:

“1. Sideburns will not be worn lower than the ear lobe.

2. The hair will not at any time hang over the shirt collar.

3. Hair will not be worn over the ears.

4. Moustaches will be neatly trimmed, straight, and no handle bars.

5. Beards are not permitted.”

3 . Earwood no longer works for Continental, and only back pay is at issue.

4 . Title 42 U.S.C. § 2000e-2 provides in 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 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 employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.”

“(e) Notwithstanding any other provision of this subchapter, (1) it shall not be an unlawful employment practice for an employer to hire and employ employees, . on the basis of his religion, sex, or national origin in those certain instances where religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise . .

5 . Since we hold that Continental’s regulation does not discriminate in violation of Title VII, we need not consider whether it involves a bona fide occupational qualification.

6 . See Knott v. Missouri Pacific R. R., 527 F.2d 1249 (8th Cir. 1975); Brown v. D. C. Transit System, Inc., 523 F.2d 725 (D.C.Cir.1975); Willingham v. Macon Telegraph Publishing Co., 507 F.2d 1084 (1975), rev’g on rehearing 482 F.2d 535 (5th Cir. 1973); Baker v. California Land Title Co., 507 F.2d 895 (9th Cir. 1974); Dodge v. Giant Food, Inc., 160 U.S.App.D.C. 9, 488 F.2d 1333 (1973); Fagan v. National Cash Register Co., 157 U.S.App.D.C. 15, 481 F.2d 1115 (1973).