Editor's Note: Guest blogger Arthur S. Leonard is a professor at the New York School of Law. Professor Leonard is also the editor of the Lesbian/Gay Law Notes and blogs at Leonard Link.
Chief Judge Robert L. Miller of the U.S. District Court for the Northern District of Indiana ruled on January 5 [pdf] that an employer who discharged a gender-transitioning (male-to-female) retail sales employee for letting her hair grow longer than the employer deemed appropriate for men and using make-up, had not violated the ban on sex discrimination under Title VII of the Civil Rights Act of 1964 and a similar Indiana state law, because the employer was merely enforcing a non-discriminatory dress code. Creed v. Family Express Corporation, 2009 Westlaw 35237.
Presenting herself as Christopher Creed, the plaintiff was hired as a sales associate and began work in February 2005. She had already begun to research transitioning prior to being hired, and after successfully starting on her new job, began wearing clear nail polish, trimming her eyebrows, and sometimes wearing mascara. In the fall of 2005, Creed started "growing her hair out and wearing it in a more feminine style," and started to use the name "Amber." Local management and co-workers in the store were supportive of her gender transition, according to Creed, who also stated that no customers complained to her and the store management never told her that they had received any complaints. She received positive job evaluations, and was designated "greeter of the month" three times.
Family Express had a formal dress and grooming policy, which Creed claims she was first shown in December 2005, a few weeks before she was discharged. She dressed in conformance with the policy, but her personal appearance was not in conformance with the specification for men due to her hair length and make-up. Creed claims the store manager never complained to her about her appearance. On the other hand, Family Express claimed that numerous customer complaints were made to the store manager, who relayed them to the corporate Human Resources Department, and the Director of Operations also testified about customer complaints. However, no written documentation was offered in support of the employer's motion for summary judgment, merely affidavits.
A district store manager and the director of operations came to the store on December 14 and called Creed into a meeting. What was said in the meeting is disputed. Creed claims she was told she could not present herself in a feminine manner at work, and was asked whether it would "kill her" to appear masculine for eight hours a day while at work. When Creed, who had altered her appearance as part of the necessary "life-experience" preparatory to taking the medical steps involved in gender transition, refused to cut her hair and abandon her current appearance, she was discharged. She filed suit under Title VII, claiming sex discrimination.
Judge Miller's opinion uses respectful language and appears at times sympathetic to Creed's situation, but ultimately he concludes that case law supporting the right of employers to have dress codes and apply them uniformly takes priority over the employee's right to express her gender identity. Miller acknowledges the case law on sex stereotyping, but concludes - rather bizarrely, in my view - that it really doesn't apply, claiming that the employer was not acting based on stereotypes about how men or women should present themselves, but was merely requiring all employees to comply with a non-discriminatory dress code.
Under the case law on dress codes, employers are allowed to prescribe employee appearance, so long as their dress and grooming code is "non-discriminatory." This means, according to the courts, that employers can impose different requirements on men and women as to things such as hair length and dress, so long as neither sex incurs a greater burden than the other. This rule may seem equitable in terms of employees whose physical sex and gender identity coincide, but it is a recipe for disaster for an employee who is transitioning on the job.
Miller stated that the court had treat Creed as a man for purposes of analyzing her discrimination claim, and held, in effect, that an employer who is uncomfortable with a transitioning employee may adopt a dress code for which the transitioning employee's appearance is non-conforming, and then discharge the employee for failing to conform to the dress code. This seems totally inconsistent with the developing case law on sexual stereotyping and gender non-conformity, which holds that discharging an employee for failing to conform to the employer's gender stereotypes may violate Title VII.
Part of the problem here, of course, is that Indiana is in the 7th Circuit, which is the home of some of the worst decisions on this subject. In the neighboring 6th Circuit, two appellate decisions have now upheld Title VII actions for transgendered employees who were fired when their employer learned they would be transitioning.
Reading Miller's decision is quite frustrating. Equating this case to Jespersen, where the 9th Circuit upheld the dismissal of a woman who refused to comply with the employer's requirement to wear make-up, seems logically wrong to me. Although I disagree with the Jespersen holding, even accepting it as it stands, one would have to distinguish between a woman whose gender identity is female but who prefers not to wear make-up, and a man whose gender identity is female and who prefers to wear make-up, in terms of deciding whether the employer's insistence on a particular appearance is really the application of a non-discriminatory dress code.
In any event, this case against points up, if further evidence were needed, the failure of Title VII's sex discrimination provision to provide appropriate protection for the individual employee's right to private life. The recent comment by President-Elect Obama that he intends to seek enactment of the Employment Non-Discrimination Act to include gender identity as well as sexual orientation is welcome news, but it will be important to establish in the statute - not just in the legislative history - an intent to allow employees to appear in their desired gender identity on the job. In this case, nobody was complaining that Creed was not presentable, or that her appearance had actually impeded her ability to work. And basing the discharge on customer complaints seems counter to the lessons of race and sex discrimination under Title VII, where courts have in other contexts rejected the argument that customer preferences or biases should be allowed to dictate the personnel policies of a company subject to a statutory obligation not to discriminate on the basis of race or sex. A good employee such as Amber Creed should not be subjected to this kind of humiliating discrimination because of some intolerant customers.