Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. GC039598, Jan A. Pluim, Judge. Reversed and remanded.
Percy Matthews II in Propria Persona.
Littler Mendelson and Ryan P. Eskin for Respondent.
ZELON, J.
Appellant Percy Matthews II appeals from the judgment entered after the court sustained Inter-Con Security Systems, Inc.’s demurrer to his First Amended Complaint without leave to amend. Because Matthews, on appeal, has asserted matters which, if properly pled, could support his claims, we reverse and remand to permit him to file an amended complaint.
FACTUAL AND PROCEDURAL BACKGROUND
Matthews, in search of employment, answered an advertisement seeking security guards. After a personal interview, he was offered employment contingent only on his cutting his hair to comply with Inter-Con’s written policies. Matthews refused, asserting that he should be permitted to tie his hair into a bun, as was permitted for female employees. He did not claim, at that time, or at any time during the course of the litigation to date, that his refusal to cut his hair reflected any personal beliefs, either religious or political, or was based on any reason other than a personal choice.
Matthews sued Inter-Con on September 14, 2007, asserting two causes of action under FEHA (Govt. Code § 12940 et. seq.) arising out of disparate treatment and gender stereotyping. Inter-Con demurred, and the court sustained the demurrer with leave to amend on December 12, 2007. Matthews filed his amended complaint on December 28, 2007, asserting nine causes of action, arising under Title VII of the Civil Rights Act of 1964 (42 U.S.C.§. 2000e et seq.) and FEHA. As was true of his first complaint, his allegations asserted only that he was denied employment because of the haircut requirement, and described his efforts to obtain relief from that policy without avail. Inter-Con demurred again on January 18, 2008. Matthews failed to file a substantive opposition, but appeared and argued at the hearing. The court sustained the demurrer without leave, and Matthews timely appealed the judgment.
ANALYSIS
We review the sustaining of a demurrer without leave to amend, by giving the complaint a reasonable interpretation, assuming to be true all material facts that have been properly pleaded; if there is a reasonable possibility that the plaintiff could allege facts that would cure the defect, we must reverse. (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.)
Government Code section 12949 permits employers to establish and enforce reasonable grooming standards as follows: “Nothing in this part relating to gender-based discrimination affects the ability of an employer to require an employee to adhere to reasonable workplace appearance, grooming, and dress standards not precluded by other provisions of state or federal law, provided that an employer shall allow an employee to appear or dress consistently with the employee’s gender identity.”
Regulations from the Fair Employment and Housing Commission similarly permit an employer to impose grooming standards, so long as they do not discriminate on a prohibited basis nor “significantly burden the individual in his or her employment.” (Cal. Code Regs. tit. 2, § 7287.6 subd. (c).)
Neither party has directed us to any California case interpreting these provisions. Matthews relies, however, on both state and federal prohibitions against sex discrimination. Because the objectives and public policy underlying both FEHA and Title VII are the same, we consider federal decisions in considering issues of workplace discrimination. “With certain exceptions not implicated here, the FEHA makes it an unlawful employment practice for an employer, ‘because of the . . . sex . . . of any person, . . . to discriminate against the person in compensation or in terms, conditions, or privileges of employment.’ ([Gov. Code,] § 12940, subd. (a).)” (Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 277 (Lyle).). “[W]hile the wording of Title VII and the FEHA differs in some particulars, both statutory schemes regard the prohibition against sexual harassment as part and parcel of the proscription against sexual discrimination, and the ‘antidiscriminatory objectives and overriding public policy purposes of the two acts are identical.’ (Beyda v. City of Los Angeles (1998) 65 Cal.App.4th 511, 517.)” (Lyle, supra, 38 Cal.4th at p. 278.)
In the unemployment insurance area, established law recognizes that an employee’s personal choice not to comply with reasonable grooming standards can render that employee unavailable for employment and thus ineligible to receive unemployment compensation. See Spangler v. California Unemployment Insurance Appeals Board (1971) 14 Cal.App.3d 284; Chambers v. Unemployment Insurance Appeals Board (1973) 33 Cal.App.3d 923.
Both parties agree that Jespersen v. Harrah’s Operating Company, Inc. (2006) 444 F.3d 1104 (Jespersen), interpreting Title VII, provides critical guidance in this area.
In Jespersen, plaintiff challenged her employer’s personal grooming policy, claiming that the requirement that she wear makeup constituted unlawful sex discrimination, both because it resulted in disparate treatment based on gender and because it had a disparate impact on her. Holding that plaintiff had failed to establish a record that would support a finding that the grooming policy was motivated by sex stereotyping, the Ninth Circuit affirmed the summary judgment entered by the trial court. While the court did not preclude the possibility that a grooming code, if not reasonably applied, could unlawfully discriminate, it would not permit the subjective objection of a single employee, without evidence of improper motivation by the employer, to be the basis for a claim. (Jespersen, supra, at p. 1113.)
With respect to the claim for unequal burdens, the court recognized that demonstrating the existence of a sex-based difference in employer grooming policies, without more, does not establish a prima facie case of discrimination. (Jespersen, supra, 444 F.3d at p. 1109.) A difference in grooming standards between men and women in a policy that otherwise applies equally to all employees in a given job category does not violate Title VII unless the policy places a greater burden on one gender. (Id. at pp. 1109-1110.) Because, on summary judgment, plaintiff had submitted no evidence demonstrating that there was a relative difference in cost or time for men and women to comply with the policy, she could not prevail. (Id. at p. 1111.) Similarly, with respect to sex stereotyping, there was no evidence that the policy was based on a stereotypical view of women, or that the standards would negatively impact a woman’s ability to perform the job. (Id. at p. 1112.) Rather, more must be shown than the objection of a single employee: “We respect Jespersen’s resolve to be true to herself and to the image that she wishes to project to the world. We cannot agree, however, that her objection to the makeup requirement, without more, can give raise to a claim of sex stereotyping under Title VII. If we were to do so, we would come perilously close to holding that every grooming, apparel, or appearance requirement that an individual finds personally offensive, or in conflict with his or her own self-image, can create a triable issue of sex discrimination.” (Ibid.)
Here Matthews has alleged in his pleadings nothing more than a personal desire not to be required to cut his hair. Like Ms. Jespersen, he has the right to choose the image he presents of himself, but like her, to plead and prove a violation of law he must allege more than he did in the trial court. In neither attempt to state a case did he assert any disproportionate impact of Inter-Con’s grooming policy based on gender other than the fact that he would be required to get haircuts, while women were not. He did not assert that his choice to have long hair was a political statement or a religious requirement, or anything other than a personal preference. Nor did he assert in his pleadings that the policy would cause an adverse economic affect on men.
Thus, the trial court did not err in sustaining the demurrers. However, in his briefs to this court, he does assert that he can allege a specific detrimental economic effect of the policy on men. If he can plead facts that would demonstrate that effect, he may be able to satisfy the criteria established in Jespersen, to establish a prima facie case of discrimination. (McDonnell Douglas Corp. v. Green (1973) 411 U.S.792.) As a result, we are bound to reverse.
DISPOSITION
The judgment is reversed and the matter is remanded to permit the filing of an amended complaint consistent with this opinion. Appellant is to recover his costs on appeal.
We concur: PERLUSS, P. J., JACKSON, J.