KIRK E VERNON, Complainant
THE WACKENHUT CORPORATION, Respondent
An administrative law judge for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.
The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the administrative law judge. Based on its review, the commission makes the following:
1. The respondent, The Wackenhut Corporation (hereinafter "respondent"), is an international corporation that does business in the State of Wisconsin. The respondent contracts with the Milwaukee Downtown Business Improvement District #21 to provide "public service ambassadors" in downtown Milwaukee. Public service ambassadors walk an area of downtown Milwaukee greeting visitors, handing out brochures, giving directions, and generally functioning as goodwill ambassadors. Public service ambassadors also identify and remove graffiti and act as "eyes and ears" for the Milwaukee Police Department.
2. Many of the respondent's employees wear uniforms which, depending upon the job, can range from a polo shirt to a guard uniform. (1) Both male and female public service ambassadors wear the same uniform.
3. The respondent has a grooming policy under which female employees may wear small, stud-type earrings. Male employees are not permitted to wear earrings.
4. The complainant, Kirk E. Vernon (hereinafter "complainant"), a male, applied for a job as a public service ambassador with the respondent on March 17, 2008.
5. The complainant had several job interviews, to which he wore an earring. The complainant was told that the respondent had a policy prohibiting males from wearing earrings.
6. The complainant was hired on March 24, 2008 and began a ten-day training program shortly thereafter. He wore an earring to work each day without incident. About five or six days into his training the complainant was told by a trainer that only females could wear earrings and that he had to remove his earring in order to keep his job. The complainant removed his earring.
7. The complainant completed the work day but did not return to work for the respondent thereafter.
Based on the above FINDINGS OF FACT the commission makes the following:
Based on the above FINDINGS OF FACT and CONCLUSIONS OF LAW the commission issues the following:
Dated and mailed October 18, 2011
vernoki . rrr : 164 : 5
BY THE COMMISSION:
/s/ Robert Glaser, Chairperson
/s/ Ann L. Crump, Commissioner
The question presented in this case is whether the complainant was discriminated against when the respondent advised him that only female employees were permitted to wear earrings and that he must remove his earring or lose his job. While personal appearance regulations that treat male and female employees differently are proscribed by the portion of the Fair Employment Act that prohibits discrimination in terms and conditions and privileges of employment, see Wis. Stat. § 111.322(1), the commission has held that differences in male and female uniforms may be permitted if they have some justification in commonly accepted social norms and if they are reasonably related to business needs. Raczek v. Pizza Hut of Southern Wisconsin, ERD Case No. 9100886 (LIRC May 11, 1994), citing Carroll v. Talman Federal Savings and Loan Association, 604 F.2d 1028, 1032 (7th Cir. 1979).
The respondent has not established that the sex-based distinction in its grooming rules can be justified under the standard articulated above. While at one time earrings for males would have undoubtedly been viewed as being outside of the boundaries of commonly accepted social norms, the commission does not believe that this remains the case. Earrings for males have become commonplace and acceptable, and were in 2008, the year at issue in this case. (2) Moreover, the respondent did not demonstrate that its rule allowing only female employees to wear earrings was reasonably related to its legitimate business needs. The respondent explained that it needs to adhere to acceptable grooming standards for people in a professional, uniformed position similar to law enforcement and the military. However, the respondent did not establish that the job of public service ambassador is similar to a job in law enforcement or the military, and the commission is not persuaded that allowing males to wear small earrings would interfere with the performance of the job or negatively affect the neat and professional image the respondent seeks to convey. The commission, therefore, concludes that the complainant established probable cause to believe that he was discriminated against based on his sex, in violation of the Wisconsin Fair Employment Act.
LAURIE R. McCALLUM, Commissioner, (dissenting):
I respectfully dissent from the majority decision.
In my opinion, there is a material distinction between requiring workers of one gender to wear clothing that implicates a lesser professional status, (3) or is distasteful, demeaning, or revealing, (4) and, regulating, as here, what type of personal accessories workers of different genders may wear based upon an employer's prerogative to determine what type of business image it wants to project. As a result, the majority's reliance upon the decision of the 7th Circuit Court of Appeals in Carroll, supra. in footnote 1., is misplaced.
The minor gender difference in the respondent's earring regulation had a negligible effect on the complainant's employment opportunities. See, Capaldo v. Pan Am. Fed. Credit Union, 1987 U.S. Dist. LEXIS 14475, 43 Empl. Prac. Dec. (CCH) P37,106 (E.D.N.Y. 1987). As the court held in Pecenka v. Fareway Stores, Inc., 672 N.W.2d 800, 93 FEP Cases (BNA) 204, 84 EPDP P 41, 609 Sup. Court of Iowa (Dec. 17, 2003), fair employment laws were enacted to stop the perpetuation of sexist attitudes that significantly affect employment opportunities, not to prohibit employers from instituting personal grooming codes which have a de minimus effect on employment.
As a result, in my opinion, the matter at issue here is so trivial as not to rise to the level of an adverse employment action within the meaning of the WFEA. All the complainant had to do to continue his employment with the respondent was to remove his small stud earring. The limited resources of the judicial and the quasi-judicial administrative law systems should not be expended on disputes of little real significance or impact, a recurrent theme in Title VII decisions (5) and the common law.
Moreover, even if the matter at issue is actionable under the WFEA, the record does not establish that the prohibition against sex discrimination has been violated.
Even those courts that have recognized a sex discrimination cause of action in these types of grooming code disputes, and the commission (6), have concluded that prohibited sex discrimination does not result from grooming requirements that have some justification in commonly accepted social norms and are reasonably related to business needs.
The only evidence in the record relevant to this test establishes that the complainant was hired as a public service ambassador by the respondent, a private security firm, under the terms of a contract with the Milwaukee Downtown Business Improvement District #21; the respondent's ambassador positions provided concierge-type services and served as the "eyes and ears for the Milwaukee Police Department:" and the respondent considered these ambassador positions to be professional, uniformed positions similar to law enforcement. The evidence of record further shows that the respondent viewed the wearing of earrings by male ambassadors to be contrary to the professional image it wanted to project and, as a result, in conflict with its business needs.
The record shows, given the nature of the duties performed by the ambassadors, that the respondent was reasonably justified in regulating the appearance of these workers, and in determining that the image it wanted these ambassadors to project was a professional one befitting those performing public contact and security/law enforcement duties in an urban business district. The record does not show that the respondent's earring grooming code was inconsistent with the image the respondent had chosen to project.
The record does not establish that, in the downtown Milwaukee area, for those performing public service, concierge, security or law enforcement, or similar services for a business improvement district or similar employer, prohibiting males from wearing earrings would frustrate a commonly accepted social norm.
The majority's holding that the wearing of earrings by male ambassadors satisfies a commonly accepted social norm for the position and the locality, is impermissibly based upon personal beliefs, not the evidence of record. The majority holds that "[e]arrings for males have become commonplace and acceptable, and were in 2008." However, although, taking into account "the realm of ordinary experience" as the majority urges, the wearing of earrings by males in certain circumstances may have been common in 2008, the majority's implication that it was universally so, i.e., that it was common at that time in all business settings in all localities and, in particular, the one at issue here, is baseless.
In my opinion, the matter at issue is not actionable under the WFEA and, even if it were, the record does not support a conclusion that the respondent's earring grooming policy was unrelated to a reasonable business goal or conflicted with a commonly accepted social norm for the position and the locality.
Consequently, this complaint should not be remanded for further hearing but instead, because probable cause has not been established, should be dismissed.
/s/ Laurie R. McCallum, Commissioner
Public Service Ambassadors
600 E. Wells St.
Milwaukee, WI 53202
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(1)( Back ) The record contains no evidence to establish what the uniform for public service ambassadors consists of.
(2)( Back ) The dissenting commissioner maintains that the majority's holding in this regard is based impermissibly upon its personal beliefs and not on evidence in the record. However, the commission is not required to ignore its personal observations in issuing its decisions. To the contrary, expert testimony is mandatory only where the matter at issue is "not within the realm of ordinary experience and lay comprehension." Robinson v. City of West Allis, 239 Wis. 2d 595, 611, 619 N.W.2d 692 (2000), quoting White v. Leeder, 149 Wis. 2d 948, 960, 440 N.W.2d 557 (1989). The question of whether earrings for males is a commonly accepted social norm is exactly the type of question that is within the realm of ordinary experience. The commission further notes that the respondent, which has the burden of proof on this issue, has presented no evidence to contradict the commission's finding.
(3)( Back ) See, e.g., Carroll v. Talman Federal Savings and Loan Association, 604 F.2d 1028 (7th Cir. 1979); O'Donnell v. Burlington Coat Factory, Inc., 656 F. Supp. 263 (S.D. Ohio 1987).
(4)( Back ) See, EEOC v. Sage Realty Corp., 507 F. Supp. 599 (S.D.N.Y. 1981).
(5)( Back ) Smart v. Ball State University, 89 F.3d 437, 71 FEP Cases 495 (7th Cir. 1996); Williams v. Bristol-Myers Squibb Co., 85 F.3d 270, 70 FEP Cases 1639 (7th Cir. 1996).
(6)( Back ) Raczek v. Pizza Hut of Southern Wisconsin, ERD Case No. 9100886 (LIRC May 11, 1994).