On January 21, the U.S. Court of Appeals for the Eighth Circuit issued a decision that is likely to expand the frontiers of sex discrimination litigation in this circuit (which covers Arkansas, Missouri, Iowa, Minnesota, Nebraska, and North and South Dakota). In Lewis v. Heartland Inns of America, a female plaintiff who had masculine characteristics and mannerisms was terminated from her job as a motel night auditor. The trial court granted summary judgment to the employer on the plaintiff’s sex discrimination claim because the plaintiff presented no evidence she was treated less favorably than similarly situated males, or that the employer was biased against women in favor of men. The court of appeals reversed, and held that a decision maker’s remarks to the effect that female employees should be "pretty" and feminine was sufficient evidence to generate a jury question whether the employer was motivated by unlawful sex discrimination, even in the absence of evidence concerning the treatment of male employees.
With this decision, the Eighth Circuit joined the First, Second, Sixth, and Ninth Circuits in holding that an employer’s expectation that an employee should act consistent with a preferred sex stereotype may constitute sex discrimination.
The plaintiff in Lewis worked part time at the front desk at various locations of the Heartland Inn. She generally had worked the overnight shift. For two years Lewis’ managers thought she was a good employee and requested she receive pay raises. One of her managers testified that Lewis “made a good impression” , and another that she “did her job well.” There was a record of at least one customer comment that praised Lewis. In December 2006, Lewis’ manager requested permission from Heartland’s Director of Operations to offer Lewis a full time night auditor position on the 3 p.m. to 11 p.m. shift. The Director of Operations, who had never seen Lewis, granted the permission.
After seeing Lewis, the Director of Operations had second thoughts. She told Lewis’ manager that Lewis was not a “good fit” for the front desk. She apparently lacked the “Midwestern girl look”. The Director of Operations, who was also female, had been heard to boast about the appearance of women staff members, and indicated that Heartland staff should be “pretty.” 
Lewis herself described her appearance as “slightly more masculine.” She preferred to wear loose fitting clothing, including men’s button down shirts and slacks. She avoided makeup and wore her hair short. Lewis has been mistaken for a male, and referred to as “tomboyish”.
The Director of Operations ordered Lewis’ manager to move her back to the overnight shift. About the same time, a new policy was instituted that required any employee hired for a front desk position to go through a second interview. Heartland purchased video equipment so that the Director of Operations could view a candidate before extending an offer. Even though Lewis had been working the 3-11 shift for a month, the Director of Operations insisted she go through a second interview. When Lewis protested and said it was illegal, she was terminated.
The district court granted summary judgment to Heartland because Lewis produced no evidence that she was treated differently than similarly situated male employees. The Court of Appeals held, however, that the district court was wrong to require the plaintiff to present evidence concerning male employees, noting that “comparative evidences is certainly not the exclusive means by which a plaintiff may establish an inference of discrimination.”
The critical issue, the court reasoned, is “whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.” According to the court, the statements that front desk personnel should be “pretty”, and that Lewis lacked the “Midwestern girl look” was sufficient to generate a jury question whether her gender played a role in the decision. In other words, it was not necessary to offer evidence that male employees were subject to a different standard because a reasonable fact finder could find that the terms by their nature apply only to women.
While it is not clear the Lewis decision will result in a flood of new lawsuits, it nonetheless expands the boundaries for potential sex discrimination claims in a way that will make it more difficult for employers to defend. It is important to note that stereotypical attitudes concerning how women should behave was already relevant in such cases. However, a plaintiff still had to show that, as a result of such attitudes, female employees were at a disadvantage compared to males. Now, it seems, a female employee can prove unlawful sex discrimination by showing she was disadvantaged compared to other females who acted more feminine than she. Likewise, a male employee can simply show that male employees who were more masculine were favored over those who exhibited feminine characteristics. The difficulty is that, unlike gender itself, which is an objectively verifiable fact, many notions of femininity and masculinity are inherently subjective.
The Lewis case is one of those decisions where bad facts make bad law. Based upon the record presented in the court’s opinion, there is little doubt Ms. Lewis was treated poorly for reasons unrelated to her performance. Her appearance certainly put her at a disadvantage compared to other female employees. But there simply was no basis to conclude she was at a disadvantage compared to similarly situated males.
For other perspectives on this case, see the following:
"Of Slacks and Sex Discrimination", in Work Matters Blog.
"Eighth Circuit Issues Interesting Appearance/Sex Stereotyping Case", in Workplace Prof Blog.