We are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotypes associated with their group.
— U.S. Supreme Court
Price Waterhouse
Facts
Brenna Lewis started working for Heartland Inns, a small hotel chain, in July 2005. She mainly worked as a night-shift auditor, and in the first 18 months of her employment, she received two merit pay raises from her managers and favorable evaluations from the guests. When Barbara Cullinan, Heartland’s director of operations, heard from Lori Stifel, Lewis’ manager, what a great job she was doing, she gave Stifel permission to move Lewis to the day shift.
Lewis accepted the offer and took over the job in December 2006. All was well until Cullinan saw Lewis at the front desk. She told Stifel that she wasn’t a good fit and that the company had taken “two steps back” when Lewis took over because she lacked the “Midwestern girl look.” Cullinan had been heard saying that Heartland employees should be pretty, a quality she believed was essential for the front desk. So strong was her belief that she had previously told a hotel manager not to hire an applicant because she wasn’t pretty enough.
Lewis, who has been mistaken for a male, prefers loose-fitting clothing, including men’s button-down shirts. She wears no makeup and keeps her hair short. Stifel described her style as an “Ellen Degeneres” look.
Cullinan insisted that Stifel either put Lewis back on the night shift or resign. Stifel refused to make the switch because she thought Lewis was doing phenomenal work.
The company began requiring general managers to conduct a second interview before hiring front desk employees, and video equipment was installed so that Cullinan and the HR director could see applicants before hiring them. One of Lewis’ former managers questioned the move to Cullinan, who responded that hotels must have a certain “personification and appearance.”
Interview Gone Bad
In January 2007, Lewis and Cullinan met for an interview. By then, Lewis had heard from Stifel what Cullinan had said about her appearance. She questioned the necessity for an interview, noting that others hadn’t been held to the same requirement. She told Cullinan that she’d heard about the “Midwestern girl” comment and asked her whether Heartland’s actions were lawful.
Lewis cried throughout the meeting. During the course of the interview, Cullinan asked her why she thought hotel revenue was down and what her views were on new company policies. She also asked if Stifel was the source of her knowledge about the “Midwestern girl” comment. Three days later, Lewis was fired, supposedly for thwarting the interview procedure and being hostile to new company policies. Following her termination, she sued Heartland, claiming sex discrimination and retaliation.
Litigation Ensues
Lewis, who had never been disciplined, claimed that Heartland’s true reason for firing her was her failure to conform to sex stereotypes, in violation of sex discrimination laws. That claim, along with her retaliation claim, was rejected by the district court, prompting her to appeal to the Eighth U.S. Circuit Court of Appeals, the federal court that handles appeals from South Dakota.
The Eighth Circuit looked at cases decided 30 years earlier, when female employees were expected to wear uniforms, sexually provocative clothing, and contacts rather than glasses. The courts — then and now — found that stereotypical attitudes requiring women to walk, talk, and dress more femininely, including wearing makeup and jewelry, violate the law when they lead to adverse employment decisions. Lewis argued that she was fired not because of her job performance or qualifications, but because her appearance didn’t meet Heartland’s preconceived idea of “feminine” or “pretty.”
The Eighth Circuit said the district court made a mistake. When an employer discriminates against a female employee because she doesn’t wear dresses, makeup, or jewelry, it is engaging in sex discrimination because the discrimination would not occur but for the employee’s sex. Thus, the court sent the stereotyping claim back for a jury trial.
Retaliation
Lewis also filed a retaliation claim alleging she was fired three days after she raised her concerns about the company’s actions. She asserted that during the second interview, Cullinan grew defensive when Lewis asked her about the “Midwestern girl” comment. While Heartland claimed that its policy required a second interview, Lewis responded that the requirement was put in place in reaction to her specific situation and that the hotel hadn’t previously required second interviews of others who had transferred within the company.
The kiss of death for the company may have been Cullinan’s description of the interview with Lewis. She testified that Lewis had “emphatically stated that she thought it was illegal” for Heartland to ask for a second interview and move her back to the night shift. The court agreed that Lewis clearly stated her opposition to an illegal action, the most basic element for a retaliation claim. Because she was fired three days later, the court found there was sufficient evidence to allow a jury to determine whether retaliation occurred.
Bottom Line
It isn’t only women’s appearance that leads to stereotyping. In one case, a man who was undergoing a sex change was threatened with termination if he refused to submit to multiple psychological evaluations. In another case, a woman didn’t receive a promotion because her supervisor believed she had too much on her plate with four young children. Finally, a young woman who was told she was “being a blond again” was able to proceed with her sexual stereotyping claim based on the comment. The lesson? Be careful that your decisions aren’t based on personal stereotypes about what employees should look or dress like or how they walk and talk.
Firing an employee who is vociferously objecting to and raising concerns about being treated unfairly should cause you to step back and get some advice. Do you really want to buy a lawsuit because you acted in the heat of the moment? Even if the underlying claim has no merit, the complaint alone is enough to warrant a retaliation claim — and the damages for a retaliation claim are the same as those for a sex discrimination claim, including attorneys’ fees.