Online Exclusive: Guidelines for Avoiding a Gender Stereotyping Claim

Brenna Lewis was the model employee. For about a year and a half she worked front desk night shifts at various Heartland Inns in Iowa, where managers said she did a “great job” and “fit into the [front desk] position really well.”

On Dec. 15, 2006, Lewis’ manager, Lori Stifel, received permission from the company’s director of operations, Barbara Cullinan, to offer Lewis a full-time day-shift position. Without needing to go through another interview, Lewis started her new job by the end of the month.

But when Cullinan finally saw Lewis at work, things turned sour. She told Stifel that Lewis might not be a good fit for the front desk. Cullinan, who had been known to emphasize the need for female front desk employees to be pretty, said Lewis lacked the “Midwestern girl look.”

According to court documents, Stifel described Lewis’ appearance as “an Ellen DeGeneres kind of look.” People had also referred to her as “tomboyish” and had mistaken her for a male.

Cullinan ordered Stifel to put Lewis back on the night shift. Stifel refused, and Cullinan asked her to resign. Soon after, Cullinan met with Lewis and told her she had to interview a second time to keep the job she already had held for a month. Lewis said she believed she was being singled out because of her unconventional appearance, and she questioned the legality of Cullinan’s actions.

Lewis was fired three days later for allegedly thwarting the interview process and acting hostile toward company policy. Lewis sued for Title VII violations, claiming she was actually terminated for not conforming to gender stereotypes. The district court awarded summary judgment to Heartland, but on Jan. 21 the 8th Circuit reversed and remanded Lewis v. Heartland Inns in a 2-1 decision. The court said Lewis had a cause of action and that the case should go to trial.

The ruling confirms a legal principle that recently has gained support in circuit courts across the country: Although Title VII does not deal with sexual orientation, the statute protects individuals from discrimination for breaking gender stereotypes, the courts have found.

“Companies have to realize that while we all would like to project certain images, there are people who don’t conform to those images,” says Dennis Brown, managing shareholder of Littler Mendelson’s San Jose, Calif., office. “You have to make accommodations for them.”

Business Basis

As long as employees do their jobs well and fulfill their employers’ requirements, normally they should not have to conform to a specific gender stereotype at work, says Maria Greco Danaher, a shareholder at Ogletree, Deakins, Nash, Smoak & Stewart. A manager needs an actual business reason for any adverse action.

“That is, you didn’t come to work, or you came to work and did your job badly or you got in a fight with your supervisor,” she explains.

Occasionally, a company might have a business need to enforce a stereotypical dress code, Danaher says, such as a clothing retailer that wants employees to wear certain merchandise so customers will see the company’s products. Likewise, an industrial company could prohibit certain types of sleeves for safety reasons.

None of those conditions, however, applied to Lewis. Heartland’s personnel manual did not even mention appearance in the front desk job description. Most importantly, the plaintiff performed well at work, earning customer praise as well as her boss’ support.

“Her immediate supervisor really went to bat for her and was asked to resign for standing up for that,” says Marcia McCormick, associate professor at St. Louis University School of Law and co-editor of the Workplace Prof Law Blog.

Gender Guidelines

Companies whose employees deal with the public have the most risk for this sort of claim, Brown says. Understandably, employers wish to present an image they believe will yield more business. But in-house counsel must be careful about how policies are written and applied.

“That [desire] must yield to the individual rights that people have under the law,” Brown says. “Take a good hard look at dress code and personal grooming policies to make sure they truly are gender neutral.”

It can be tempting to mix the gender stereotype issue with the question of general attractiveness, which misses the point, several experts say. Yet McCormick says that’s what Chief Judge James Loken did in the Lewis dissent. He argued that in many circumstances, attractiveness is an important part of work.

“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,” he wrote.

Brown says in-house counsel should not read this case as preventing employers from considering attractiveness when making hiring decisions. Lewis’ core problem wasn’t her attractiveness or unattractiveness, he says. The problem was that management thought Lewis looked too masculine for the position. And that’s gender discrimination, not a judgment about beauty.

“Imagine you had two candidates who fell within the ‘norm,’ but one happened to be better looking than the other,” Brown says. “This [decision] would not prohibit an employer from doing what humans do all the time, which is selecting the person who is better looking.”