United States: District Court For The EDNY Denies Motion To Dismiss Selective Enforcement Gender Discrimination And Retaliation Claims Related To Enforcement Of Employer's Hair Policy

In Visecchia v. Alrose Allegria LLC, a recent decision from the United States District Court for the Eastern District of New York, the court granted in part and denied in part a motion to dismiss claims of gender discrimination and retaliation brought by a hotel chef against his former employer alleging that the employer selectively enforces a hair policy in a manner that discriminates against male employees. In his complaint, plaintiff Richard Visecchia Jr. alleged he had long hair since he began working for the Allegria Hotel (the "Hotel") as a line cook in 2009. He also stated that, in 2012, Hotel management directed him to cut his hair because it was "too long" under the Hotel's hair policy, which reads as follows:

Hair must be clean, trimmed, well brushed and neat at all times, Extreme style flowers [sic], colored ribbon's [sic], beaded, braided or streaked hair is not permitted. Color should be maintained at neutral tones. Men's hair must be above the shirt collar. Side burns should not exceed one inch in length and should be neatly trimmed. No other type of hair covering should be worn unless considered a part of the uniform.

Visecchia claimed that, in response to the directive from management asking him to cut his hair, he complained to the Hotel that the hair policy was unlawfully discriminatory towards male employees. He further claims that, after he did not cut his hair, the Hotel's Human Resources Department issued a written warning instructing him to cut his hair by October 15, 2013 or face possible disciplinary action, including potential termination. Finally, Visecchia alleges that he did not comply with the written warning and his employment was terminated on or around October 16, 2013.

After his termination, plaintiff brought action against the Hotel alleging 1) employment discrimination on the basis of gender under Title VII of the Civil Rights Act ("Title VII") and New York State Human Rights Law (the "NYSHRL") and 2) federal and state law claims of unlawful retaliation for engaging in activities protected by the aforementioned statutes. The Hotel filed a motion to dismiss on the basis that the alleged instances of discrimination and retaliation do not give rise to actionable claims under Title VII and the NYSHRL. In response to the motion to dismiss the gender discrimination claims, plaintiff argued that 1) the Hotel's hair policy is "inherently discriminatory" because it prescribes different hair lengths for men and women and 2) the Hotel selectively enforced the hair policy, permitting women to violate the policy in other respects, but not men.

With regard to plaintiff's first argument that the policy is "inherently discriminatory," the Court noted that the Second Circuit and every court of appeals that has addressed this issue has found that differing hair length standards for men and women does not create a cognizable claim under Title VII. Similarly, under the New York Human Rights Law, employers may institute appearance and grooming policies which differentiate between men and women, so long as the policy requires "all employees [to] conform to certain standards of dress' and 'such policies are reasonable and are imposed in an evenhanded manner on all employees.'" Knott v. Mo. Pac. Ry. Co., 527 F. 2d 1249 (1975). Accordingly, the Court concluded that the different hair length requirements for male and female employees are not actionable under Title VII or the NYSHRL and granted the Hotel's motion to dismiss as to this portion of the gender discrimination claims.

Next, the Court turned to the argument that the hair policy was selectively enforced by the Hotel. Visecchia alleged that female employees at the Hotel who were in violation of the hair policy were not reprimanded and were able to continue working for the Hotel. He provided photographs of two female employees of the Hotel who he alleged had "streaked hair" in violation of the Hotel policy, but were not disciplined. Although the Hotel argued that the female employee's streaked hair was not "extreme" enough to violate the policy, the Court found that this was a factual issue which could not be addressed at the motion to dismiss stage. As a result, the Court concluded that the allegation that the Hotel selectively enforced its hair policy by itself was sufficient to state a plausible claim of gender discrimination based on selective enforcement.

The Court also found that Visecchia had established an actionable retaliation claim sufficient to withstand the motion to dismiss. The Court distinguished the instant matter from Harper v. Blockbuster Entm't Corp., 139 F. 3d 1385 (1998), which established a requirement that a plaintiff's belief that a policy is discriminatory must be objectively reasonable, in addition to being honest and bona fide. In Harper, the Eleventh Circuit affirmed the dismissal of sex discrimination and unlawful retaliation claims after male plaintiffs were allegedly terminated when they did not comply with the employee's hair length policy. Here, unlike Harper, there was an allegation that the grooming policy was selectively enforced and the Court found it plausible that Visecchia's alleged complaint about the policy to the Hotel included a complaint about the selective enforcement of the policy. Under these circumstances, the Court found plaintiff's complaint constituted a protected activity which could form the basis of a retaliation claim.

Visecchia affirms the importance of employer's enforcing grooming policies "evenhandedly" between men and women. While employers may institute sex-differentiated grooming requirements, the policies imposed may not unreasonably burden one gender. Employers should review their grooming policies, as well as the enforcement history of their policies, to ensure that their grooming policies do not unequally burden one gender over another.

*Kathleen Simpson is a law school intern currently attending Brooklyn Law School.

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