Wis.LIRC ER Decision: Raczek, Margaret - May 11, 1994 - Sex discrimination - requirement that female waitstaff wear skirts

STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

MARGARET M. RACZEK, Complainant

PIZZA HUT OF SOUTHERN WISCONSIN, Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. 9100886

An administrative law judge for the Equal Rights Division of the Department of Industry, Labor and Human Relations issued a decision in this matter on March 8, 1983. A timely petition for review was filed by Respondent.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence which was submitted to the administrative law judge. Based on its review, the commission now makes the following:

FINDINGS OF FACT

1. The Respondent, Pizza Hut of Southern Wisconsin, Inc., is an employer with multiple restaurant locations in Madison and the southern Wisconsin area.

2. The Complainant, Margaret Raczek, is a female. She was hired by Respondent to work at its Fern Drive location in Madison. She was hired to work as "front of house" waitstaff. This assignment involved waiting on customers in the dining area.

3. Pizza Hut has a uniform policy which is published in its employee handbook. The policy requires employees to wear uniforms. The policy distinguishes between employees who work in the "front of house" (dining area), and those who work in the cooking area or at the register, which is referred to as "back of house". The uniform policy states that "back of house" employes are required to wear approved pants, a shirt or blouse, shoes, apron, hat/visor, name tag, and dark socks. The policy further states that "front of house" employes are required to wear an approved blouse, skirt or jumper, nylons in light skin tone, visor, name tag, and dark shoes.

4. Respondent employs both males and females in "front of house" positions. Despite the fact that the uniform policy prescribes a uniform for "front of house" employes which includes a blouse, skirt or jumper, and nylons, males employed in "front of house" positions are not in practice required to wear these items. Instead, they are expected to comply with the specifications of the "back of house" uniform policy.

5. The skirt which was approved for wear in compliance with the uniform policy for "front of house" employes was a black, wrap- around type skirt of knee length or longer. It left a slit in back with some amount of overlap of material.

6. Respondent made a special exception from the uniform policy at its restaurant on State Street in Madison, which is in the University of Wisconsin campus area. Respondent allowed female "front of house" employes at this location to wear pants.

7. Complainant was interviewed and hired by Pat Augustine, the manager of Respondent's Fern Drive restaurant. At that time, Augustine informed Complainant of Respondent's uniform policy. Complainant inquired about being allowed to wear pants, and Augustine gave her permission to wear pants when she performed work as a "front of house" employee.

8. In February, 1991 Roger Koehler, an area supervisor for Respondent, visited the Respondent's Fern Drive location and observe complainant and another female employe wearing pants while performing "front of house" work. Koehler told Augustine that this was a deviation from Respondent's uniform policy which was not permitted and that Augustine must tell the employees to wear the required uniform, including skirts and nylons. Koehler performed a formal inspection of Respondent's Fern drive location later in February, 1991, he again observed Complainant and another female wearing pants while performing "front of house" work, and he again told Augustine that this was a deviation from the uniform policy and that Augustine should enforce that policy.

9. Augustine subsequently informed Complainant and the other female employe who had been wearing pants that they would have to comply with the uniform requirement that they wear skirts and nylons.

10. Complainant subsequently met with a number of representatives of Respondent's management in an effort to persuade them to change the uniform policy to allow female "front of house" employes to wear pants. In these meetings she objected that she believed that the policy, that females working in the "front of house" area were not allowed to wear pants while males were, discriminated on the basis of sex. She also objected that the wrap-around style skirts left a flap which could open as she bent or lifted while doing her job, and that the requirement that females wear nylons could impose a significantly greater cost on female employes than on male employes who were required only to provide socks for themselves. She also objected that she felt it was demeaning that females were required to wear a uniform which exposed their legs while males were not.

11. Following these meetings, Respondent's General Manager William Gill and Secretary and Controller Terry Turner reviewed the matter. They decided to retain the existing uniform policy. The primary reason that Respondent decided to retain the existing uniform policy was that it was intended to distinguish Respondent's restaurants from "fast food"-type restaurants: Respondent's marketing plan called for identifying the restaurant as full-service dining restaurants for family or business dining and it was believed that the uniform policy would help further that market strategy. A second reason given for the policy was to avoid the cost of supplying multiple uniforms which might be required if employes could choose which uniform (skirts or pants) they wanted. Another reason was concern about presenting a consistent image at all locations (with the exception of the State Street location, at which the policy was not enforced to require wearing of skirts) to prevent customer confusion about the restaurant image. Finally, the uniform policy was intended to simplify enforcement of the policy and to minimize employe customizing of the uniform.

12. Respondent established March 1, 1991 as a deadline after which Augustine would have to begin enforcing the uniform policy at the Fern Drive restaurant. On February 28, 1991 Complainant noted that she was not listed on the work schedule for the following week. She asked Augustine if she would be scheduled for work, Augustine asked her in response if she would wear a skirt, Complainant responded that she would not, and Augustine in turn responded that she would not schedule her for work until she agreed to wear a skirt. Complainant never advised Respondent that she would wear a skirt at work and she was never again placed on the work schedule.

13. Complainant was terminated by Respondent because she would not agree to comply with the requirement of Respondent's uniform policy that she wear a skirt and nylons.

14. On March 18, 1991 Complainant met with Gill. At this time Gill offered Complainant a position as a "front of house" employe at Respondent's State Street restaurant, where Complainant would not be required to wear a skirt. Gill also offered Complainant the alternative of a job in the management training program at the Fern Drive restaurant, in which position she would also not be required to wear a skirt because management trainees were not required to wear skirts. The Complainant telephoned Gill several days later and turned down both of these offers.

15. Respondent located a bulk supplier of nylons and offered them to its female "front of house" employees at a cost of 99› per pair. The installation of a button or Velcro closure on the flap of the required skirt, at Respondent's cost, was also offered by Respondent to its female "front of house" staff to respond to their concerns.

16. Respondent's uniform policy did not, to any significant degree, make working conditions more difficult for female "front of house" staff than for male "front of house" employees, impose greater costs on female "front of house" employees than on male "front of house" employees, or pose more of a potential for embarrassment for female "front of house" employees than for male "front of house" employees.

Based on the FINDINGS OF FACT made above, the commission now makes the following:

CONCLUSIONS OF LAW

1. The Respondent, Pizza Hut, is an employer within the meaning of the Wisconsin fair Employment Act.

2. The Complainant, Margaret Raczek, is an individual within a protected classification within the meaning of the Wisconsin fair Employment Act.

3. Pizza Hut did not engage in discrimination on the basis of sex within the meaning of the Wisconsin Fair Employment Act by imposing its uniform policy on Complainant or by terminating Complainant because she would not comply with that uniform policy.

Based on the FINDINGS OF FACT AND CONCLUSIONS OF LAW made above, the commission now makes the following:

ORDER

The complaint in this matter is dismissed.

Dated and mailed May 11, 1994

Pamela I. Anderson, Chairman

Richard T. Kreul, Commissioner

James R. Meier, Commissioner

MEMORANDUM OPINION

This case presents a question of whether a uniform requirement for restaurant employes involves sex discrimination prohibited by the Wisconsin Fair Employment Act. The commission agrees with the statement made by administrative law judge in his Memorandum Opinion, that the dearth of relevant decisions under the Act leads to the necessity of determining whether the Act was intended to prevent the discrimination alleged. (1 ) The commission also agrees with the administrative law judge, that some guidance may be found in the policy statement found in sec. 111.31, Stats., and that resort may also be had to decisions of federal courts under federal anti- discrimination laws.

As the administrative law judge noted, this is not a case in which the uniform which females must wear is distasteful, demeaning or intended to be sexually revealing, as was the case in EEOC v. Sage Realty Corp., 507 F. Supp. 599 (S.D.N.Y. 1981). The commission is thus not required to decide, and it does not here decide, whether a requirement that female employes wear such a uniform would violate the Act.

This is also not a case in which there is a uniform requirement for females, but no uniform requirement for men or only a general standard such as a requirement that men wear "appropriate business attire", with its attendant implication that females are less able than males to exercise sound judgment in dress and its creation of an appearance that the female employes have a lesser professional status than the male employes. See, e.g., Carroll v. Talman Federal Savings and Loan Association, 604 F.2d 1028 (7th Cir. 1979), and O'Donnell v. Burlington Coat Factory, Inc., 656 F. Supp. 263 (S.D. Ohio 1987).

What is involved here, as the administrative law judge noted, is a policy that brings a similar degree of restrictiveness and a similar requirement of uniformity to both males and females, and which requires both males and females to wear a specific uniform consisting of specified items of basically conservative clothing, but which has some differences in the specific articles of clothing required of females as opposed to males. The courts that have addressed such situations have held that they do not involve violations of anti-discrimination laws. Fountain v. Safeway Stores, 555 F.2d 753 (9th Cir. 1977); Lanigan v. Bartlett & Co. Grain, 466 F. Supp. 1388 (W.D. Mo. 1979).

The commission also notes and agrees with the formulation of the 7th Circuit Court of Appeals in Carroll, that differences in male and female uniforms are permitted if they have some justification in commonly accepted social norms and if the standards are reasonably related to business needs. It disagrees with the conclusion of the administrative law judge herein that Pizza Hut's policy is based upon a sexual stereotype which is not the result of commonly accepted social norms and which perpetuates a sexual stereotype that is demeaning to females. The administrative law judge presumably had in mind a presumed sexual stereotype that it is somehow improper or "unfeminine" for females to wear pants. However, the commission believes that Pizza Hut's policy is based on something else: a commonly accepted social norm that, for females, a skirt or dress is a more formal article of clothing than pants. It is not the appearance of "subservience" or femininity, but the appearance of formality, that is being sought. Pizza Hut's marketing strategy, which represents a business need to promote its enterprise in a competitive market, is to emphasize a more formal dining atmosphere than that offered in what are generally characterized as "fast food" eateries.

The commission also disagrees with the administrative law judge, that the requirement that female "front of house" employes wear a skirt and nylons makes the physical portion of their job more difficult and imposes a significantly greater burden on them than the requirement that male "front of house" employes wear approved pants and dark socks. The commission is not persuaded by the evidence that the job was made any more physically difficult by the requirement of wearing a skirt. Furthermore, the skirts were provided at Respondent's expense. As Respondent argues, the record does not support a claim that Complainant had to replace her nylons every shift -- because it is undisputed that she never worked in a skirt and nylons while at Pizza Hut and thus had no experience with how long a pair of nylons could be expected to last her doing that work. Particularly in view of Respondent's offer to provide access to a source of nylons at a low price -- where there was no indication that Respondent took any special steps to reduce the financial burden on male "front of house" employes caused by the requirement that they provide dark socks -- it is hyperbolic to assert that the assumed additional costs for nylons was "significant".

NOTE: The commission did not consult with the administrative law judge concerning his personal impressions as to the credibility of witnesses prior to reversing his decision. The commission has reversed because it has arrived at a different legal conclusion on the question of whether the situation presented in this case is one that was intended by the legislature to be viewed as a violation of the Fair Employment Act.

110

Appealed to Circuit Court. Stipulated Order issued December 14, 1994.

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Footnotes:

(1)( Back ) Unlike the administrative law judge, the commission does not believe that a "sex plus" discrimination analysis (the very validity of which is questionable; see, e.g., Employment Discrimination, Arthur and Lex Larson, Matthew Bender, 1993 at sec. 11.20) is helpful in this case. Female "front of house" employes are required to wear skirts because they are female. The question is whether this requirement violates the Act.