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Page 1
656 F.Supp. 263, 43 Fair Empl.Prac.Cas. (BNA) 150, 43 Empl. Prac. Dec. P 37,151
(Cite as: 656 F.Supp. 263)
© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
S.D.Ohio,1987.
O'Donnell v. Burlington Coat Factory Warehouse, Inc.
656 F.Supp. 263, 43 Fair Empl.Prac.Cas. (BNA) 150, 43 Empl. Prac. Dec. P 37,151
United States District Court, S.D. Ohio, Western Division.
Karen C. O'DONNELL, et al., Plaintiffs,
v.
BURLINGTON COAT FACTORY WAREHOUSE, INC., et al., Defendants.
No. C–1–86–0069.
Feb. 24, 1987.
Summary judgment granted to plaintiffs.
West Headnotes
[1] Estoppel 156 52.10(3)
Female sales clerks did not waive their claim for retaliatory discharge for failing to wear “smocks”; statements
made by their counsel during deposition indicated his concern not only with allegedly discriminatory dress code
requiring female sales clerks to wear smocks while allowing male sales clerks to wear shirt and tie, but also with
discriminatory enforcement of that rule, which resulted in discharge of female sales clerks. Civil Rights Act of 1964,
§ 701 et seq., 42 U.S.C.A. § 2000e et seq.
170AXI(B)5 Proceedings
170Ak1827 Determination
170Ak1831 k. Fact Issues. Most Cited Cases
Court cannot try issues of fact on motion for summary judgment, but is empowered only to determine whether
there are issues to be tried.
Page 2
656 F.Supp. 263, 43 Fair Empl.Prac.Cas. (BNA) 150, 43 Empl. Prac. Dec. P 37,151
(Cite as: 656 F.Supp. 263)
78 Civil Rights
78II Employment Practices
colleagues attired in normal business clothes, so that “smock requirement” created disadvantages to conditions of
employment of female sales clerks and was violation of Title VII. Civil Rights Act of 1964, § 701 et seq., 42
U.S.C.A. § 2000e et seq.
[4] Civil Rights 78 1177
Even though smock required to be worn by female sales clerks, but not males, was worn over street clothes, it
operated as uniform, for purpose of determining whether smock rule violated Title VII. Civil Rights Act of 1964, §
701 et seq., 42 U.S.C.A. § 2000e et seq.
[5] Civil Rights 78 1513
Although victims of discrimination are required to utilize administrative process before filing lawsuit, they are
not required to abide by unlawful job requirements to keep their jobs while using administrative process.
Robert F. Laufman, Cincinnati, Ohio, for plaintiffs.
November 7, 1986. For the reasons stated below, we deny summary judgment to defendants but grant it in favor of
plaintiffs.
Page 3
656 F.Supp. 263, 43 Fair Empl.Prac.Cas. (BNA) 150, 43 Empl. Prac. Dec. P 37,151
(Cite as: 656 F.Supp. 263)
© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
Background
dress code as being violative of Title VII of the Civil Rights Act of 1964. The dress code in question requires female
sales clerks to wear a “smock,” while male sales clerks only are required to wear business attire consisting of slacks,
shirt and a necktie. The smocks are supplied to the female sales clerks at no cost.
After complaining that the smock requirement for women is discriminatory, plaintiffs refused to wear the
smocks and instead wore regular business attire. Plaintiffs filed sex discrimination charges with the EEOC on Au-
quiring female sales clerks to wear a smock while allowing male sales clerks to wear a shirt and tie is discriminatory
under Title VII. The parties, however, disagree upon whether there is a remaining claim for retaliatory discharge that
is not before this Court on the pending cross motions for summary judgment. On the one hand, plaintiffs contend
they have a claim that they were discharged in retaliation for protesting defendants' allegedly discriminatory practic-
es and for filing charges before the EEOC. Defendants, on the other hand, argue that plaintiffs waived their retalia-
Mr. Laufman: All right. I guess it's a matter—off the record.
(discussion off the record).
Mr. Sunderland: Back on the record. Can we stipulate that plaintiffs do not contend that there is any evidence of a
general sex bias? There issue or their complaint in this case relates only to the requirement that female salesclerks
wear the smock, where male salesclerks do not wear the smock or are not required to wear the smock?
Mr. Sunderland: Sure, it says they are not required to.
Page 4
656 F.Supp. 263, 43 Fair Empl.Prac.Cas. (BNA) 150, 43 Empl. Prac. Dec. P 37,151
(Cite as: 656 F.Supp. 263)
© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
Mr. Laufman: I am not trying to cut you off. The discriminatory enforcement of a rule that says smocks are pro-
vided and only enforced against the women.
Mr. Sunderland: Off the record.
Mr. Sunderland: Let's stipulate that in this case there is no evidence of any general sex bias; the only issue here is
the smocks. We can enter into that one, Bob.
Mr. Laufman: Uh-huh.
Phelan-Long Depo., at 40–42.
[1] Plaintiffs argue that defendants' reference to the identified statements made in the Phelan-Long deposition is
[2] In considering a motion for summary judgment, the question we must decide is whether there is “no genuine
issue as to any material fact and [whether] the moving party is entitled to judgment as a matter of law.” Rule 56(c),
Fed.R.Civ.P. The Court cannot try issues of fact on a Rule 56 motion but is empowered only to determine whether
there are issues to be tried. In Re Atlas Concrete Pipe, Inc., 668 F.2d 905, 908 (6th Cir.1982). “[T]he District Court
[is] obligated to consider not only the materials specifically offered in support of the motion, but also all ‘pleadings,
Sixth Circuit's decision in Barker v. Taft Broadcasting Co., 549 F.2d 400 (6th Cir.1977), defendants' contend that
distinctions between the sexes that do not adversely effect the terms and conditions of employment or employment
opportunities do not violate Title VII. In Barker, the Court upheld an employer's grooming code which mandated
shorter hair lengths for men than for women. Id. at 401. Importantly, this grooming code set standards for both sex-
es: it regulated the length of men's hair and the styles for women's hair. Most circuit courts considering this issue are
vantages for women in their compensation, terms, conditions or privileges of employment or employment opportu-
nities. Because plaintiffs stipulated that wearing the smocks had no effect on their salary, benefits, hours of em-
ployment, raises, employment evaluations or any other term or condition of employment (Phelan-Long deo. at 37–
Page 5
656 F.Supp. 263, 43 Fair Empl.Prac.Cas. (BNA) 150, 43 Empl. Prac. Dec. P 37,151
(Cite as: 656 F.Supp. 263)
© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
38), defendants argue that the distinction in question is not discriminatory. Analogizing the dress requirement here
ments: female employees had to wear a smock and male employees had to wear a shirt and tie.
Plaintiffs acknowledge that Title VII does not prohibit all differences in treatment between the sexes but claim
that a rule requiring only women to wear a smock does violate Title VII. In support of their position, plaintiffs claim
that the instant case should not be governed by the “hair length/grooming” line of decisions cited by defendants.
Rather, plaintiffs direct our attention to cases directly addressing “uniform” requirements that mandate different
initial cost of their uniforms as well as subsequent cleaning and maintenance expenses. Id. The employer expressly
maintained that the purpose of the uniform requirement was to reduce fashion competition among women. Id. at
1031. Since men do not engage in such competition, they do not need a uniform requirement. Id.
The Seventh Circuit held that personal appearance regulations with differing requirements for men and women
do not violate Title VII as long as there is “some justification in commonly accepted social norms and are reasona-
had several non-discriminatory alternatives to accomplish its business goals. Id.
[3][4] We agree with the holding and reasoning in Talman and find it directly applicable to the case at bar. De-
fendants, however, seek to distinguish Talman. Initially, we reject defendants' argument that a “smock” is not a uni-
form such as the one at issue in Talman. Even though the smock is worn over street clothes, we find it serves the
same purpose, and in fact operates as a uniform.
is demeaning for one sex to wear a uniform when members of the other sex holding the same positions are allowed
to wear professional business attire. In contrast to the “hair length” standards for male employees, the smock re-
quirement finds no justification in accepted social norms. Moreover, as plaintiffs point out, defendants have several
non-discriminatory alternatives for achieving the goal of sales clerk identification: both sexes could wear the smock,
a distinguishing blazer or identifying badges on their professional attire. Thus, we find that the smock rule creates
Page 6
656 F.Supp. 263, 43 Fair Empl.Prac.Cas. (BNA) 150, 43 Empl. Prac. Dec. P 37,151
(Cite as: 656 F.Supp. 263)
utilize the administrative process before filing a lawsuit, they are not required to abide by unlawful job requirements
to keep their jobs while using the administrative process. See Allen v. Lovejoy, 553 F.2d 522 (6th Cir.1977) (backpay
for trial is the determination of damages on the discrimination claim we decide today as well as plaintiffs' claim for
retaliatory discharge.
SO ORDERED.
S.D.Ohio,1987.
Page 2
656 F.Supp. 263, 43 Fair Empl.Prac.Cas. (BNA) 150, 43 Empl. Prac. Dec. P 37,151
(Cite as: 656 F.Supp. 263)
78 Civil Rights
78II Employment Practices
colleagues attired in normal business clothes, so that “smock requirement” created disadvantages to conditions of
employment of female sales clerks and was violation of Title VII. Civil Rights Act of 1964, § 701 et seq., 42
U.S.C.A. § 2000e et seq.
[4] Civil Rights 78 1177
Even though smock required to be worn by female sales clerks, but not males, was worn over street clothes, it
operated as uniform, for purpose of determining whether smock rule violated Title VII. Civil Rights Act of 1964, §
701 et seq., 42 U.S.C.A. § 2000e et seq.
[5] Civil Rights 78 1513
Although victims of discrimination are required to utilize administrative process before filing lawsuit, they are
not required to abide by unlawful job requirements to keep their jobs while using administrative process.
Robert F. Laufman, Cincinnati, Ohio, for plaintiffs.
November 7, 1986. For the reasons stated below, we deny summary judgment to defendants but grant it in favor of
plaintiffs.
Page 3
656 F.Supp. 263, 43 Fair Empl.Prac.Cas. (BNA) 150, 43 Empl. Prac. Dec. P 37,151
(Cite as: 656 F.Supp. 263)
© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
Background
dress code as being violative of Title VII of the Civil Rights Act of 1964. The dress code in question requires female
sales clerks to wear a “smock,” while male sales clerks only are required to wear business attire consisting of slacks,
shirt and a necktie. The smocks are supplied to the female sales clerks at no cost.
After complaining that the smock requirement for women is discriminatory, plaintiffs refused to wear the
smocks and instead wore regular business attire. Plaintiffs filed sex discrimination charges with the EEOC on Au-
quiring female sales clerks to wear a smock while allowing male sales clerks to wear a shirt and tie is discriminatory
under Title VII. The parties, however, disagree upon whether there is a remaining claim for retaliatory discharge that
is not before this Court on the pending cross motions for summary judgment. On the one hand, plaintiffs contend
they have a claim that they were discharged in retaliation for protesting defendants' allegedly discriminatory practic-
es and for filing charges before the EEOC. Defendants, on the other hand, argue that plaintiffs waived their retalia-
Mr. Laufman: All right. I guess it's a matter—off the record.
(discussion off the record).
Mr. Sunderland: Back on the record. Can we stipulate that plaintiffs do not contend that there is any evidence of a
general sex bias? There issue or their complaint in this case relates only to the requirement that female salesclerks
wear the smock, where male salesclerks do not wear the smock or are not required to wear the smock?
Mr. Sunderland: Sure, it says they are not required to.
Page 4
656 F.Supp. 263, 43 Fair Empl.Prac.Cas. (BNA) 150, 43 Empl. Prac. Dec. P 37,151
(Cite as: 656 F.Supp. 263)
© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
Mr. Laufman: I am not trying to cut you off. The discriminatory enforcement of a rule that says smocks are pro-
vided and only enforced against the women.
Mr. Sunderland: Off the record.
Mr. Sunderland: Let's stipulate that in this case there is no evidence of any general sex bias; the only issue here is
the smocks. We can enter into that one, Bob.
Mr. Laufman: Uh-huh.
Phelan-Long Depo., at 40–42.
[1] Plaintiffs argue that defendants' reference to the identified statements made in the Phelan-Long deposition is
[2] In considering a motion for summary judgment, the question we must decide is whether there is “no genuine
issue as to any material fact and [whether] the moving party is entitled to judgment as a matter of law.” Rule 56(c),
Fed.R.Civ.P. The Court cannot try issues of fact on a Rule 56 motion but is empowered only to determine whether
there are issues to be tried. In Re Atlas Concrete Pipe, Inc., 668 F.2d 905, 908 (6th Cir.1982). “[T]he District Court
[is] obligated to consider not only the materials specifically offered in support of the motion, but also all ‘pleadings,
Sixth Circuit's decision in Barker v. Taft Broadcasting Co., 549 F.2d 400 (6th Cir.1977), defendants' contend that
distinctions between the sexes that do not adversely effect the terms and conditions of employment or employment
opportunities do not violate Title VII. In Barker, the Court upheld an employer's grooming code which mandated
shorter hair lengths for men than for women. Id. at 401. Importantly, this grooming code set standards for both sex-
es: it regulated the length of men's hair and the styles for women's hair. Most circuit courts considering this issue are
vantages for women in their compensation, terms, conditions or privileges of employment or employment opportu-
nities. Because plaintiffs stipulated that wearing the smocks had no effect on their salary, benefits, hours of em-
ployment, raises, employment evaluations or any other term or condition of employment (Phelan-Long deo. at 37–
Page 5
656 F.Supp. 263, 43 Fair Empl.Prac.Cas. (BNA) 150, 43 Empl. Prac. Dec. P 37,151
(Cite as: 656 F.Supp. 263)
© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
38), defendants argue that the distinction in question is not discriminatory. Analogizing the dress requirement here
ments: female employees had to wear a smock and male employees had to wear a shirt and tie.
Plaintiffs acknowledge that Title VII does not prohibit all differences in treatment between the sexes but claim
that a rule requiring only women to wear a smock does violate Title VII. In support of their position, plaintiffs claim
that the instant case should not be governed by the “hair length/grooming” line of decisions cited by defendants.
Rather, plaintiffs direct our attention to cases directly addressing “uniform” requirements that mandate different
initial cost of their uniforms as well as subsequent cleaning and maintenance expenses. Id. The employer expressly
maintained that the purpose of the uniform requirement was to reduce fashion competition among women. Id. at
1031. Since men do not engage in such competition, they do not need a uniform requirement. Id.
The Seventh Circuit held that personal appearance regulations with differing requirements for men and women
do not violate Title VII as long as there is “some justification in commonly accepted social norms and are reasona-
had several non-discriminatory alternatives to accomplish its business goals. Id.
[3][4] We agree with the holding and reasoning in Talman and find it directly applicable to the case at bar. De-
fendants, however, seek to distinguish Talman. Initially, we reject defendants' argument that a “smock” is not a uni-
form such as the one at issue in Talman. Even though the smock is worn over street clothes, we find it serves the
same purpose, and in fact operates as a uniform.
is demeaning for one sex to wear a uniform when members of the other sex holding the same positions are allowed
to wear professional business attire. In contrast to the “hair length” standards for male employees, the smock re-
quirement finds no justification in accepted social norms. Moreover, as plaintiffs point out, defendants have several
non-discriminatory alternatives for achieving the goal of sales clerk identification: both sexes could wear the smock,
a distinguishing blazer or identifying badges on their professional attire. Thus, we find that the smock rule creates
Page 6
656 F.Supp. 263, 43 Fair Empl.Prac.Cas. (BNA) 150, 43 Empl. Prac. Dec. P 37,151
(Cite as: 656 F.Supp. 263)
utilize the administrative process before filing a lawsuit, they are not required to abide by unlawful job requirements
to keep their jobs while using the administrative process. See Allen v. Lovejoy, 553 F.2d 522 (6th Cir.1977) (backpay
for trial is the determination of damages on the discrimination claim we decide today as well as plaintiffs' claim for
retaliatory discharge.
SO ORDERED.
S.D.Ohio,1987.
