The United States District Court for the District of Alabama recently permitted a male’s sex-bias claim to proceed against Charming Charlie, a women’s accessories company with over 200 locations, after the company’s manager allegedly made sexist comments about men during the hiring process and failed to establish a start date after offering employment to the plaintiff. Owen v. Charming Charlie, No. 13-S-1009-S, 2013 WL 3968658 (N.D. Ala. July 31, 2013).

Background Facts

According to the allegations in the complaint, which the Court had to accept as true at this point in the case, Courtney Owen, the male plaintiff, applied for a retail position at the Charming Charlie store in Bessemer, Alabama. Two months later, Owen received a telephone call from Shannon Wells, the manager of the store, inviting Owen to interview. Wells allegedly informed Owen during the interview that she rarely hires males. She also purportedly stated that men typically “don't like” the company’s policy requiring all sales associates to wear six accessories while working. Owen told Wells that he had no problem with the six accessory requirement, but Wells allegedly reiterated that men typically do not like and “can’t do” the dress code. Wells told Owen that she “might be willing” to hire Owen as a temporary employee, and that if he could follow the dress code, he “might” get a permanent position.

Later the same day, Owen received an e-mail containing an offer of employment, along with instructions for completing the hiring documents. Owen completed the necessary documentation as requested. Later that week, Owen received a telephonic message from Wells, inviting him to join the “set-up team” to prepare for the grand opening of the new store. Owen returned Wells’ call but never received a call in return. He left multiple messages following up on the job but never heard from any Charming Charlie representative.

A few weeks later, Owen filed a charge with the Equal Employment Opportunity Commission (EEOC) alleging that he had been denied employment on the basis of sex. In February 2013, the EEOC issued a right-to-sue notice. In March 2013, Owen filed an amended charge with the EEOC, expanding on his initial claim. The amended charge alleged that:

Upon information and belief, the accessories requirement and other policies have a disparate impact on male applicants and employees and intentionally discriminate against male applicants and employees, without sufficient business justification, and [defendant] knows this. In addition to its policies having a disparate impact and weeding out male applicants, respondent engages in a pattern and practice of intentional discrimination against males in the hiring process and in the terms and conditions of employment of any males who are hired and uses its accessories policy as a pretext for intentional discrimination in hiring and in other terms and conditions of employment.

The EEOC did not issue any notices regarding Owen’s amended charge before Owen filed suit.

The Motion to Dismiss

Owen filed his lawsuit, on behalf of himself and a class that he seeks to represent, alleging that Charming Charlie engaged in discrimination against males “on the basis of their sex with respect to hiring in retail sales positions” in violation of Title VII of the Civil Rights Act of 1964. Charming Charlie filed a motion to dismiss on the basis that Owen had failed to exhaust all administrative remedies; specifically, that the complaint did not contain an “individual claim for relief,” and that Owen’s first charge of discrimination did not contain “allegations of class-wide discrimination.”

As to the first issue, the Court concluded that the complaint did contain an individual claim for relief. Specifically, it included the following allegations: that Owen applied for a sales associate position; that he was qualified for the position; that, during his interview, Wells told him that she rarely hired males, that men typically “don’t like” the company’s policy requiring all sales associates to wear six accessories while working, and that men usually “can’t do the dress code,” or something to that effect; and that, after he received a job offer, Wells refused to return his calls seeking to establish a start date. The complaint seeks damages for this behavior on behalf of Owen and the class. Thus, the Court concluded that the complaint did contain individualized claims for relief and was not procedurally deficient.

Second, Charming Charlie alleged that Owen’s first charge of discrimination did not contain “allegations of class-wide discrimination.” The company admitted, though, that Owen’s second EEOC charge did include allegations of discrimination based on theories of “disparate impact” and “pattern and practice” against males as a class. Charming Charlie argued that the second charge was insufficient to support the current suit because the EEOC had yet to complete its investigation and had not issued a right to sue notice with regard to the second charge.

The Court agreed with Charming Charlie that the second charge was not properly before the Court because the EEOC had yet to conclude its investigation. The Court, however, relied on the first EEOC charge in permitting the case to proceed. The Court observed that Owen’s first charge alleged that Wells made two statements during his interview that apply to the class of men as a whole: i.e., that Wells “rarely hires men”; and that “men typically don’t like the company’s requirement for employees to wear six to seven ‘accessories.’” The Court concluded that such facts, if true, show the existence of both a facially neutral policy (“the company’s requirement for employees to wear six to seven ‘accessories’”), and of a disparate impact on male applicants and employees (Wells’ statement that “men typically don’t like” that requirement). The Court noted that those facts, if true, would also show that Charming Charlie has “pattern or practice of discriminating against males.”

Although the language of Owen’s first charge of discrimination did not “presage with literary exactitude the judicial pleadings which may follow” (such as by using the words “disparate impact,” “pattern or practice,” or “class”), the Court concluded that the charge included sufficient factual allegations to trigger an EEOC investigation into his class allegations. Accordingly, the Court denied Charming Charlie’s motion to dismiss and the case is currently proceeding in the district court.

Conclusion

The Charming Charlie case demonstrates that even seemingly innocuous, perhaps well-intentioned comments can be viewed as potential evidence of discrimination. Moreover, the case brings to light how arguably neutral policies — such as the requirement that an employee wear six pieces of jewelry during work — can have a disparate impact on a particular group of employees. These issues are accentuated in the fashion industry, where a retailer may be gearing the sales of certain products to a particular demographic.