Post Ali v. Mount Sinai Hospital, 68 Empl. Prac. Dec. (CCH) 44,188, 1996 U.S. Dist. LEXIS 8079 (S.D.N.Y. 1996)
An African American female employee sued the employer for racial discrimination in violation of Title VII, for discriminatory enforcement of the employer’s dress code. She alleged she was disciplined for violating the code but whites were not. The court found that the employee had offered no evidence of discriminatory enforcement, so the court had no choice but to find in favor of the employer.
It is undisputed that, at all relevant times, the Hospital had a detailed three-page dress code for all of its nursing department staff, including unit clerks. It expressly provided that “the style chosen be conservative and in keeping with the professional image in nursing” and that the “Unit clerks wear the blue smock provided by the Hospital with conservative street clothes.”
The wearing of boots, among other items of dress, was expressly prohibited. With regard to hair, the dress code provided that “it should be clean and neatly groomed to prevent interference with patient care” and only “plain” hair barrettes and hairpins should be worn. As plaintiff acknowledges, “The hallmark of said code was that the staff had to dress and groom themselves in a conservative manner.”
It is also undisputed that Ms. Ali violated the dress code. Ms. Ali reported to work at the CSICU wearing a red, three-quarter length, cowl-necked dress and red boots made of lycra fabric which went over her knees. Over her dress, Ms. Ali wore the regulation smock provided by the Hospital. She wore her hair in what she says she then called a “punk” style. She now calls it a “fade” style, which she describes as an “Afro hairstyle.” It was shorter on the sides than on the top and was in its natural color, black. According to Dr. Shields, Ms. Ali’s hair was not conservative because it “was so high” and “you noticed it right away because it was high and back behind the ears and down. It certainly caused you to look at her. It caused attention.”
Deposition of Dr. Elizabeth Shields: Her hair “had to be at least three to five inches high down behind her ears.” This description by Dr. Shields has not been disputed.
According to the employee, Dr. Shields approached her and asked her to look in the mirror and see what looks back at her. Ali responded that she looked beautiful. Ms. Ali testified that Dr. Shields told her that “I belong in a zoo, and then the last thing she said was I look like I [am] . . . going to a disco or belong in a disco or something to that effect.”
Dr. Shields testified: “I told her about the whole outfit. She had red boots, red dress, in the unit. This is the post open heart unit. People come out of here after just having cracked their chest. We were expected to be conservative.”
Title VII makes it an unlawful employment practice for an employer “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin. . . .”
Defendants seek summary judgment dismissing the complaint on the ground that plaintiff cannot make a prima facie showing that they engaged in discriminatory conduct.
To establish a prima facie case of individualized disparate treatment from an alleged discriminatory enforcement of the dress code, plaintiff must show that she is a member of a protected class and that, at the time of the alleged discriminatory treatment, she was satisfactorily performing the duties of her position. This she has done. However, her prima facie showing must also include a showing that Mount Sinai Hospital had a dress code and that it was applied to her under circumstances giving rise to an inference of discrimination.
Reviewing all of the evidence submitted on the motion, employee does not raise an issue of fact as to whether the enforcement of the code against her was discriminatory. There is no dispute that employee was in violation of the dress code. Her claim is that the dress code was enforced against her but not against others, who also violated its requirements, but were not black. The problem is the utter lack of evidence supporting this position.
Employee offers no evidence that the dress code was not enforced against other Hospital employees as it was against her. Dr. Shields’ testimony that the dress code had been enforced against other nurses was not disputed. Although Ms. Ali identified certain Caucasian women whom she believed were in violation of the code, she failed to set forth any evidence to show a lack of enforcement.
All that employee’s testimony establishes is that she was unaware of the enforcement of the dress code against others. Following a full opportunity for discovery, employee has not proffered any additional evidence to support her claim of disparate treatment. On this record, there is no reason to believe that she will be able to offer at trial evidence from which a jury could reasonably conclude that there was racially discriminatory enforcement of the dress code.
It is not enough that Ms. Ali sincerely believes that she was the subject of discrimination; “[a] plaintiff is not entitled to a trial based on pure speculation, no matter how earnestly held.” Summary judgment is appropriate here because employee has failed to raise an issue of fact as to whether the dress code was enforced against her under circumstances giving rise to an inference of discrimination. Motion to dismiss GRANTED.
1. Was Ms. Ali alleging disparate treatment or disparate impact? Explain your answer.
2. Walk through plaintiff’s prima facie case for the Title VII claim you identified above (disparate treatment or disparate impact), discussing each element, and whether Ali proved that element. Then, examine the defendant’s defense. You are the judge (you have replaced Judge Gershon). Explain who wins based on whether plaintiff has proven all her elements and whether you believe the defendant has, or has not, proven their defense.
3. What advice would you have given this employer that could have prevented this conflict, and resulting lawsuit?