A male hair stylist who says a supervisor told him it was “socially unacceptable” for him to “look like a girl” has filed a discrimination lawsuit that alleges sex stereotyping was alive and well in the unlikely setting of a hair salon.

Daniel Brant

Far from embracing the unconventional, Daniel Brant says in his suit, supervisors at two Chop Shop salons in Philadelphia subjected him to “discriminatory remarks and actions based on his sex, male, and his failure to conform to stereotypes regarding how males should appear and behave” after he showed up for work in shorts and shoes with a heel.

One supervisor allegedly told Brant he was “too flamboyant” for male clients. He was fired in August 2008 –- shortly after he asked Chop Shop owner Kathy Thomas why he had to abide by different rules than female stylists.

“In response thereto, Kathy stated, 'it is okay for a girl to look like a dyke, but it is not socially acceptable for [Plaintiff Brant] to look like a girl,'” the complaint, which seeks unspecified damages for sex discrimination and retaliation, says.

The U.S. Supreme Court has held that “[s]ex stereotyping [by an employer] based on a person’s gender non-conforming behavior is impermissible discrimination” under Title VII of the Civil Rights Act. Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).

But Title VII does not apply to discrimination based on sexual orientation and the 2nd U.S. Circuit Court of Appeals dismissed a similar case to Brant's in which a lesbian hair assistant alleged a New York salon discriminated against her because of her unfeminine appearance.

“When utilized by an avowedly homosexual plaintiff ... gender stereotyping claims can easily present problems for an adjudicator,” the court said in Dawson v. Bumble & Bumble, 398 F.3d 211 (2005). “This is for the simple reason that '[s]tereotypical notions about how men and women should behave will often necessarily blur into ideas about heterosexuality and homosexuality.'”

Brant says in his suit that he “typically dresses in women’s dress pants and shirts, and wears shoes with a heel. He curls his eye lashes and uses brown mascara, and also uses gel blush to color his cheeks. His hair is about chin-length."

"This case has nothing to do with the fact that he's gay," Brant attorney Susan R. Wexler told the Philadelphia Inquirer. "This is because he wore clothes and makeup that are traditionally worn by women. He wouldn't have been discriminated against if he was gay and wore male clothes."

The Dawson court noted that the Bumble & Bumble salon was “an environment in which conformance to gender norms was something less than a prerequisite for continued employment,” but tolerance allegedly was not the norm at Chop Shop, a no-frills salon catering to both sexes with haircuts starting at $15.

Brant had been working at Chop Shop's Temple University location for about three months, his suit says, when a supervisor named Monica told him in May 2008 he could not wear shorts and shoes with a heel.

After the “flamboyant” Brant was barred from having male clients, he was transferred to the downtown Philly store where, according to Monica, the clientele was more “open-minded.” But a supervisor there also objected to his attire, leading to his complaint to the owner, who allegedly told him he would have to change his look if he wanted to keep his job.

Brant alleges Chop Shop fired him on the pretext that he referred a client to another salon when the real reason was “retaliation for his having opposed unlawful sexual discrimination in the workplace.”

In the only Pennsylvania precedent involving sex stereotyping, the 3rd Circuit dismissed a gay man's case because it “indicated only that he was being harassed on the basis of his sexual orientation.” Bibby v. Phila. Coca Cola Bottling Co., 260 F.3d 257 (2001).

Brant's suit does suggest discrimination motivated by his “failure to conform to male stereotypes” rather than his perceived sexual orientation. He would be eligible for damages if he suffered adverse employment consequences -– such as the ban on male clients and the termination –- as a result of his appearance.

But Chop Shop's attorneys are sure to chip away at the case for any hint of ambiguity or confusion that would tip it away from Title VII's protections.

By Matthew Heller
8/4/09