‘Tomboyish’ Clerk can Proceed with Discrimination Suit

January 26, 2010 (PLANSPONSOR.com) – A federal appellate court has ruled that a female hotel front-desk clerk who was fired by a hotel chain after being told she lacked a "Midwestern girl look" should get a second chance at pursuing her employment discrimination lawsuit.

With that ruling, the 8th U.S. Circuit Court of Appeals threw out a lower-court decision dismissing the case filed by plaintiff Brenna Lewis who alleged she was let go from the Heartland Inns of America of Waterloo, Iowa, because she was too “tomboyish.”

The hotelier’s actions constituted an employment action based on sex stereotypes and that termination violated her rights under Title VII of the Civil Rights Act of 1964, Lewis alleged in her suit.

The 8th Circuit sent the Lewis suit back to the lower court after ruling that she had proven a strong enough case to be allowed to move forward.

Circuit Judge Diana E. Murphy, writing for the court, quoted a 2004 case by the 6th U.S. Circuit Court of Appeals involving a firefighter who was born male but subsequently came to identify as a woman. 

“We conclude that (Lewis) has (put forward strong enough proof), for ‘an employer who discriminates against women because. . . they do not wear dresses or makeup, is engaging in sex discrimination because the discrimination would not occur but for the victim’s sex.’,” Murphy wrote.

According to Murphy’s decision, Lewis got a job with Heartland in July 2005, first working in positions without direct customer contact.  After 18 months, she began to work shifts on hotel front desks at the chain’s properties.

Not a 'Good Fit?'

At one point, Director of Operations Barbara Cullinan saw Lewis at work, later telling supervisors she didn’t think Lewis was a “good fit.” Murphy described in the ruling how Lewis prefers to wear loose-fitting clothing, including men's button-down shirts and slacks, that Lewis avoids makeup and wears her hair short. According to the decision, Lewis has been mistaken for a male.

The 8th Circuit ruling said Cullinan was heard to boast about the appearance of women staff members and had indicated that Heartland staff should be "pretty," a quality she considered especially important for women working at the front desk. Cullinan also had advised a hotel manager not to hire a particular applicant because she was not pretty enough, according to Murphy.

The appellate decision said Cullinan met with Lewis in January 2007, after Lewis had been working the front desk for almost a month and after there had been no complaints about Lewis or her appearance.  In fact, Lewis had been given two merit pay raises, the court said.

At the meeting, Cullinan informed Lewis she would need to be reinterviewed to “confirm/endorse” her for the front desk job. Lewis, Murphy said, claimed she was being discriminated against because of her looks, questioned whether the actions were lawful, and “cried throughout the meeting.”

The 8th Circuit ruling is available here.