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August 4, 2004.


The opinion of the court was delivered by: JEROME SIMANDLE, District Judge


This is a race and gender discrimination action brought pursuant to 42 U.S.C. § 2000(e) (hereinafter "Title VII") and the New Jersey Law Against Discrimination ("NJLAD"). N.J. Stat. Ann. § 10:5 (2004). Defendants seek partial dismissal of the claim pursuant to Fed.R.Civ.P. 12(b)(6). Plaintiff has filed a cross-motion for summary judgment against the Defendants pursuant to Rule 56, Fed.R.Civ.P. Based on the reasoning set forth below, the Defendants' motion to dismiss is granted and the Plaintiff's cross-motion for partial summary judgment is denied. For the reasons explained herein, Plaintiff's claim that Defendants' grooming code for employees is discriminatory against males falls outside the scope of both Title VII and the NJLAD and will be dismissed as a matter of law. Plaintiff's remaining claim of discriminatory application of the employee grooming policy survives this motion and will proceed on its merits.


  The Plaintiff in this case is a caucasian male named Michael Wiseley. The Defendants are Harrah's Entertainment Corporation and Marina Associates, doing business as Harrah's Casino Hotel. On April 5, 1986, the Plaintiff began working as a room service waiter in the Food and Beverage Department of Harrah's Casino Hotel in Atlantic City, New Jersey. (Compl., ¶ 12.) The Plaintiff has had long hair throughout most of his employment with Harrah's, which he has worn in a ponytail that is tucked "neatly" into a bun at the back of his head. (Compl., ¶ 15.) Between April of 1986 and April of 2002, the Plaintiff received no indication from the Defendants that his hairstyle violated any grooming policies, standards, or guidelines. (Pl. Dec., ¶ 4.)

  Then, on April 11, 2002, Plaintiff attended a meeting for room service employees. (Pl. Decl., ¶ 5.) Each of the employees received a copy of Harrah's grooming policy, which stated, in pertinent part, that "ponytails on men must be clipped and tucked neatly inside a shirt collar." (Compl., ¶ 16.) Plaintiff signed a statement acknowledging that he received and understood the policy. (Pl. Decl., ¶ 6.)

  Approximately ten days later, a female manager, Ms. Ardith Carides, called the Plaintiff into her office. (Pl. Decl., ¶ 9.) She informed Plaintiff that Harrah's had changed their grooming policy and presented him with a copy. (Pl. Decl., ¶ 9; Compl., ¶ 17.) The new policy, which came into effect on or about April 21, 2002, stated that men were no longer permitted to wear ponytails at all, and that their hair was to be no longer than one inch over the top of the collar. (Compl., ¶ 17.) The new policy, which states that non-complying individuals are "subject to disciplinary action, including termination," contained no comparable restrictions for female employees. (April 21, 2002 Policy.) Ms. Carides informed the Plaintiff that his appearance did not comply with the new policy, and that he would be fired if he did not cut his hair. (Compl., ¶ 19) Up until this point, Plaintiff's performance record with Harrah's had been satisfactory or better. (Compl., ¶ 14.)

  The Plaintiff immediately complained about the unfairness of the policy and what he alleged to be a discriminatory application to Ms. Carides, and pointed to the fact that she was free, as a female, to keep her hair long and unrestricted in any way. (Compl., ¶ 20.) Ms. Carides allegedly responded that she wore her hair as she pleased "because [she is] a girl." (Compl., ¶ 20.) Furthermore, a Harrah's Equal Employment Opportunity representative, Mylka Naranjo, met with the Plaintiff and informed him that different rules applied to different sexes and men could not wear long hair for the same reason that women could not wear mustaches. (Compl., ¶ 23.)

  On April 25, 2002, Ms. Carides repeated the "cut your hair or be fired" ultimatum to the Plaintiff. (Compl., ¶ 28.) The Plaintiff cut his hair on or about April 27, 2002 in order to retain his job. (Compl., ¶ 26.) However, on November 21, 2002, the Plaintiff filed a gender and race discrimination complaint with the Equal Employment Opportunity Commission (EEOC) and the New Jersey Division on Civil Rights (NJDCR), claiming that Harrah's April 21, 2002 grooming policy was discriminatory both on its face and as applied. He alleged that similarly situated female and black employees had not been informed of the new policy and had not been told to comply with it. (Pl. Br. at 6.) Plaintiff alleges that since its implementation, the new policy has only been enforced against male employees and that black male employees with long hair could avoid compliance by attributing the length of their hair to religious reasons. (EEOC Charge, III.) Plaintiff makes further factual allegations to support his claim that Harrah's has "established a pattern and practice of discriminating against male employees." (Id.)

  According to the Plaintiff, seven white male servers in Harrah's Food and Beverage Department were given the same ultimatum and were required to cut their hair in order to retain their jobs. (EEOC Charge, III.) One was terminated for his non-compliance, but later reinstated after union intervention. (Id.) Throughout this time, Plaintiff alleges that many similarly situated female employees wore their hair long without clipping or tying it back in any way, and several colored their hair purple or pink in violation of Harrah's grooming policies, but were never reprimanded or disciplined as a result of their noncompliance. (Pl. Br. at 8.) Plaintiff points to these facts as further evidence of Harrah's willful discrimination.

  The EEOC responded to the Plaintiff's complaint on January 17, 2003. (EEOC Report.) The Commission dismissed his claims, stating that Plaintiff had not established a violation of his civil rights nor deprivation of equal employment opportunity. (Id.) The Commission did, however, advise the Plaintiff of his right to file suit against his employer for race and gender discrimination pursuant to applicable New Jersey and federal laws within ninety days of the dismissal and notice. (Id.)

  Claiming that Harrah's grooming policy is discriminatory both on its face and as applied, the Plaintiff brought suit in this Court against Defendants pursuant to Title VII and Section 1981, as well as the New Jersey Law Against Discrimination. (Compl.) On March 12, 2003, the Defendants filed a motion for partial dismissal for failure to state a claim pursuant to 12(b)(6), arguing that Plaintiff's claim of facial discrimination is not a claim that Title VII recognizes with respect to grooming policies. (Def. Br. at 3-5.)

  In response, Plaintiff Michael Wiseley filed a cross-motion for partial summary judgment asking the Court to rule, as a matter of law, that policies which use gender-specific language are discriminatory on their face and subject to Title VII protection. (Pl. Br. at 8-9.) As such, Plaintiff argues that the only defense available to the Defendants is that a bona fide occupational qualification ("BFOQ") justified the facially discriminatory language of the policy. (Pl. Br. at 11.) Because the Defendants have not addressed the BFOQ argument in their Answer to the Complaint, Plaintiff asks this Court to rule as a matter of law that the policy was facially discriminatory under Title VII. (Id.) Defendants argue that the Plaintiff's cross-motion is meritless and should be dismissed. (Def. Br. at 8.) On April 1, 2004, Plaintiff submitted a further brief in support of his cross motion for summary judgment and in opposition to the Defendants' motion to dismiss. (Pl. Supp. Br.) In his submitted documents, the Plaintiff further asserts that his Title VII claim of discrimination "as applied" is disputed and not subject to summary judgment nor dismissal. (Pl. Supp. Br. at 34.)

  This Court has original jurisdiction over the Plaintiff's Title VII claim, and supplemental jurisdiction over his NJLAD state claim pursuant to 28 U.S.C. § 1367.


  This Court finds, as a matter of law, that the Plaintiff has failed to state a cognizable claim under Title VII and the New Jersey Law Against Discrimination for his claim that the grooming policy is discriminatory on its face. Grooming policies, even if they include sex-specific language, traditionally fall outside the scope of Title VII, and by extension, the NJLAD. As such, the Court will grant the Defendants' 12(b)(6) motion and denies the Plaintiff's cross-motion for partial summary judgment as to the claim of facial discrimination. At this time, however, the Court does not address the Plaintiff's claim regarding the Defendants' discriminatory enforcement of the grooming policy, which involves issues of fact, and on which the Defendants have not sought dismissal.

  A. Defendants' Motion ...

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