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United States District Court, D. New Jersey

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 to Dismiss

  1. Standard of Review

  When considering the Defendants' 12(b)(6) motion to dismiss, this Court will take all factual allegations as true and view them in a light most favorable to the non-moving party, here, the Plaintiff. Fed R. Civ. P. 12(b)(6); see also Trump Hotels and Casino Resorts, Inc. v. Mirage Resorts, Inc., 140 F.3d 478, 483 (3d Cir. 1998). Furthermore, summary judgment is appropriate when the record "show[s] that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c).

  The sole question before this Court is whether the content of the Defendant's grooming policies constitute facial gender and race discrimination under Title VII and the NJLAD. Because the content of the two grooming policies, as well as the Defendants' "cut your hair or be fired" ultimatum are uncontested by either side, this Court will consider the claim and finds, as a matter of law, that Plaintiff's allegation of facial discrimination is not a cognizable claim under Title VII. The Court will grant the Defendant's motion, and dismiss that part of Plaintiff's complaint pursuant to Fed.R.Civ.P. 12(b)(6). All other facts, including those pertaining to Plaintiff's claim of the Defendants' discriminatory application of the policy, are outside the scope of this motion for partial dismissal.

  2. Title VII Claim of Facial Discrimination

  The Plaintiff argues that the content of Harrah's April 21st grooming policy, which forbids only male employees from wearing ponytails and conditions their employment on short hair, constitutes facial discrimination in violation of Title VII. (Pl. Br. at 10.) The Defendants admit that the April policies contain sex-specific language, but argue that the policies set forth a legitimate grooming standard and are permissible under Title VII, and the NJLAD. (Def. Br. at 5.) The Plaintiff wants this Court to extend the scope of Title VII protection to grooming standards, a field which has traditionally been placed outside the intended aim of Title VII.

  The Third Circuit Court of Appeals has not yet specifically dealt with the question of whether different hair-length policies for men and women constitute gender discrimination under Title VII. However, every circuit that has considered this question has held that hair-length and grooming policies fall outside the scope of federal employment discrimination statutes. Tavora v. New York Mercantile Exchange, 101 F.3d 907 (2d Cir. 1996); see also Harper v. Blockbuster Entertainment Corp., 139 F.3d 1385, 1387 (11th Cir. 1998); Barker v. Taft Broadcasting Co., 549 F.2d 400, 401 (6th Cir. 1977); Earwood v. Continental Southeastern Lines, Inc., 539 F.2d 1349, 1351 (4th Cir. 1976); Knott v. Missouri Pacific Railway Co., 527 F.2d 1249, 1252 (8th Cir. 1975); Willingham v. Macon Telegraph Publ. Co., 507 F.2d 1084, 1092 (5th Cir. 1975); Baker v. California Land Title Co., 507 F.2d 895, 898 (9th Cir. 1974), cert. denied, 422 U.S. 1046 (1975); Dodge v. Giant Food, Inc., 488 F.2d 1333, 1337 (D.C. Cir. 1973).

  As these cases indicate, courts have recognized certain limits on the scope of Title VII. Looking to the legislative history and intent of Title VII and its subsequently enacted Amendments, courts have determined that "Congress was concerned only to promote equal employment opportunity." Barker, 549 F.2d at 404. These circuit courts have applied this to the question of hairstyle specifications, dress-codes, and other grooming policies, finding that such requirements do not affect an individual's opportunity to obtain employment. (Id.) In Dodge, for example, the court emphasizes that one's personal appearance and dress is sufficiently within one's control such that it is easily alterable, while Title VII aims at policies that specifically discriminate on the basis of immutable characteristics that are a fundamental aspect of that person. 488 F.2d at 1337.

  In the present case, the Plaintiff's opportunity to obtain or retain employment was not affected, as the Defendants' grooming policy did not intentionally discriminate against the Plaintiff based on an immutable characteristic over which he had no control. Indeed, soon after he received the ultimatum from his manager, the Plaintiff admits that he cut his hair short in compliance with the policy, and retained his job. (Compl., ¶ 26.) No employment opportunity was lost. Furthermore, hair-length is not such a fundamental aspect of one's identity as to warrant Title VII protection. See Dodge, 488 F.2d at 1337 (distinguishing its holding from Sprogis v. United Airlines, 444 F.2d 1194 (7th Cir. 1971), which held that a "no marriage" policy for female, but not male employees, violated Title VII). As in Dodge, the Plaintiff in this case fails to show that the grooming policy affected a fundamental aspect of his identity and thus deprived him of employment opportunity.

  While the Third Circuit Court of Appeals has never considered hairstyles, it has adopted the traditional approach to grooming standards, holding that sex-specific grooming standards are permissible under Title VII so long as the policies and standards are "enforced evenhandedly." Bellissimo v. Westinghouse Electric Corp., 764 F.2d 175, 181 (3d Cir. 1985) (reversing an EEOC decision and holding that sex-specific dress codes are permissible under Title VII), cert. denied, 475 U.S. 1035 (1986).

  Here, Plaintiff argues that Harrah's grooming policy was not evenhanded, and that the April 21, 2002 policy contained no similar requirements for women. (Pl. Br. at 13-14.) This, however, is a misunderstanding of the spirit of the courts' "evenhanded enforcement" approach. A policy is considered evenhanded for the purposes of Title VII if it contains similar restrictions for both sexes. Bellissimo, 764 F.2d at 181.

  Both the April 11, 2002 and the April 21, 2002 policies contain restrictions for both sexes as to dress and appearance. They contain, for example, language that required all employees to wear clean and neatly kept hair and that prohibited "extreme styles, colors, or shaved designs." (Pl. Br. at Ex. 3.) Further, the policy forbade women from wearing mustaches, beards or other facial hair. (Id.) As such, the policies do contain sex-specific requirements, but the policies target both male and female employees in an even-handed manner, and, at least on their face, are not discriminatory within the meaning of Title VII and in violation of the Plaintiff's civil rights.

  3. Title VII and per se Discrimination

  The Plaintiff additionally grounds his argument in the language of Title VII, which states that an employer may not "fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, term, conditions, or privileges of employment because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000(e). The Plaintiff then points to the sex-specific language in the Defendants' policy, as well as Ms. Carides' and Harrah's EEOC Representative's alleged gender-stereotyped remarks, to make the case that the Defendant's policy violates Title VII on its face. Plaintiff relies on the Supreme Court's interpretation of Title VII in Desert Palace, Inc. v. Costa, 539 U.S. 90, 93 (2003), in support of his position. There, the Court held that the language of Title VII was unambiguous. From this, the Plaintiff argues that the Supreme Court has interpreted the phrase "compensation, term, conditions and privileges of employment" to mean any employment practice whatsoever. Id. at 93. The common law, however, does not support such an expansive reading of Title VII. Nor are the facts in Desert Palace similar to those in the Plaintiff's case. In Desert Palace, the plaintiff was the only female employee in her place of employment, and showed that the male employers created a hostile work environment by condoning and perpetuating sex-based slurs, and then discriminated against her by designing policies that reduced her benefits, subjected her to harsher discipline, and ultimately resulted in her employment termination. Id. at 91. No similar policy nor conditions of employment were developed for the male employees. Id. The disputed policy in this case, on its face, contains standards for male and female employees respectively.

  The cases that the Plaintiff has cited involve discriminatory employment policies and practices that affected an individual's employment opportunity because it was based on an immutable or fundamental characteristic. In the case of Price Waterhouse v. Hopkins, for example, a female plaintiff successfully brought a discrimination claim under Title VII after she was told that she did not make partner in a law firm because she was not feminine enough. Price Waterhouse, 490 U.S. 228, 235 (1989). There, her opportunity for upward employment mobility was denied based on the fact that she was a female who declined to conform to her employer's stereotypical standard for femininity. Id. at 235. Unlike the grooming policy in the instant case, which on its face applies to both genders (specifying different rules for different genders) and does not target an immutable characteristic, the policies in Price Waterhouse and Desert Palace violated Title VII because they specifically targeted an individual member of a protected class and denied them an employment opportunity based on their class status.

  4. Title VII and the Manhart "But for" Test

  In determining whether Harrah's grooming policy violates Title VII, the Plaintiff further urges this Court to apply the "but for" test developed by the Supreme Court in City of Los Angeles Dep't of Water and Power v. Manhart and Newport News Shipbuilding and Dry Dock Co. v. EEOC. 435 U.S. 702, 708 (1978); 462 U.S. 682, 669 (1983); (see Pl. Br., at 13.) The test, known as the Manhart test, finds that an employment policy is discriminatory and violates Title VII if it treats employees "in a manner which but for that person's sex would be different." Newport News, 462 U.S. 682, 669 (1983) (citing Manhart, 435 U.S. 702, 708 (1978)).

  Yet the employment policies in Manhart and Newport News Shipbuilding involve policies readily distinguishable from the grooming policy at hand Both cases involved employment policies that governed the employees' access to various employment privileges, and fell exclusively within the "terms and conditions" language of Title VII. In Manhart, the employer required that female employees make greater contributions to the pension fund because females have a statistically higher life-span than males. Manhart, 435 U.S. at 708. Similarly, Newport News involved a health insurance policy which provided less favorable pregnancy benefits to spouses of male employees than those provided to female employees. Newport News, 462 U.S. at 669.

  Both these cases involved health benefit policies that were not even-handed, and which were substantially related to the individual's employment opportunities. The "but for" test applies to cases in which employees are denied various privileges of employment as the sole result of their gender, a condition they did not choose, nor have any control over. Newport News, 462 U.S. at 670.

  The test does not apply to a grooming policy such as the one implemented by the Defendants in this case. The Plaintiff was not threatened with termination because of his status as a male employee, but rather, because of his status as a long-haired male employee. His hair-length was not a fundamental aspect of his gender, nor was it an immutable characteristic outside of his power to alter. In order to retain employment with Harrah's, Plaintiff had to comply with the policy and cut his hair to an inch above collar length, an act fully within his power and control.

  These are permissible criteria for an employer to consider when making employment decisions. Employers have a right to shape the reputation of their business, and often do so by setting forth specific guidelines for their employees, and regulating their dress, conduct, and appearance. Rivera, 305 N.J. Super. at 596. As a result, grooming policies take into account differences in gender, and set forth different requirements respectively. Title VII does not intend to usurp this important right from employers, but rather intends only to ensure that the right is not abused in violation of an employee's civil rights. Id. In the instant case, even though the Defendants' grooming policy contained sex-specific language, there is no indication that the policy, as written, discriminated against a certain gender or affected an individual's employment opportunity. That the policy was never enforced against the female employees is certainly relevant to the Plaintiff's whole Title VII claim, but is not a matter with which this present motion is concerned.

  5. Title VII and the BFOQ Defense

  Plaintiff has brought his motion for summary judgment on the grounds that the Defendants failed to raise their only available defense in a claim arising out of an employment practice or policy that is facially discriminatory under Title VII. (Pl. Br. at 10.) The Plaintiff argues that any policy that contains express sex-based language and different requirements for certain protected subgroups of employees, is a policy that is discriminatory on its face and automatically falls within the scope of Title VII and is then subject to the BFOQ affirmative defense. (Pl. Br. at 11.) Indeed, the Third Circuit adopts a broad construction of Title VII and has held that any explicitly sex-based policy is to be considered per se intentional discrimination and may be defended only as a bona fide occupational qualification. See Healy v. Southwood Psychiatric Hosp., 78 F.3d 128, 132 (3d Cir. 1996). This affirmative defense requires that an employer show that the sex-based language of a policy is not intentionally discriminatory, but that it is a bona fide occupational qualification (BFOQ) that is necessary for the job in question. (Id. at 132.)

  If a policy is held to be discriminatory under Title VII, an employer will raise a successful BFOQ defense if it can establish that the discriminatory means of the policy in question are sufficiently related to a legitimate business goal. The BFOQ defense is successful in the rare instances where the discriminatory qualifications (exclusion based on gender, age, race, national origin, religion) are reasonably necessary to the normal operation of a particular business. Dothard v. Rawlinson, 433 U.S. 321, 333 (1977). An example of a discriminatory policy that has a legitimate BFOQ defense is a policy that excludes female employees from various jobs available at a state prison, where the jobs were shown to be disproportionately dangerous to women. Id. at 333; but see Western Air Lines, Inc. v. Criswell, 472 U.S. 400, 412 (1985) (holding that age was not a proper BFOQ defense of the airline's discriminatory policy, which prohibited the employment of pilots older than 60).

  The Plaintiff's BFOQ argument, however, rests on the flawed assumption that his case automatically falls within the scope of Title VII protection because of the sex-specific language of the policy. While the Defendants' grooming policy does contain sex-specific language, grooming policies have been held to fall outside even the broadest range of Title VII protections. (See discussion supra, at II(B).) The BFOQ defense applies only to those policies that specifically target protected classes of individuals and affect their opportunity for employment by regulating a fundamental aspect of their identity as a member of that class. (Id.) Grooming policies, if enforced evenhandedly, do not fall into this category and are not subject to the BFOQ analysis.

  6. EEOC Treatment of Title VII and Grooming Policies

  Finally, the Plaintiff urges this Court to consider decisions made by the EEOC, which state that hair regulations that differ for men and women are unlawful unless justified as a bona fide occupational qualification. E.E.O.C. Decision No. 72-1380, 4 F.E.P. Cases 846, 847 (1972).*fn1 Generally, courts give great deference to the EEOC's interpretation of Title VII, because the Commission was designed specifically for the purpose of administrating the statute. United States v. City of Chicago, 400 U.S. 8, 10 (1970); see also Udall v. Tallman, 380 U.S. 1 (1965); Power Reactor Co. v. Electricians, 367 U.S. 396 (1961); and Griggs v. Duke Power Co., 401 U.S. 424, 433-34 (1971).

  The Plaintiff argues that the EEOC Decision No. 72-1380 considers the scope of Title VII to include grooming policies and applies this rationale to legitimize his facial discrimination claim. While the Plaintiff is correct is asserting that the EEOC has required a BFOQ analysis for discrimination claims arising out of grooming policies, and has found the BFOQ a successful defense only in those "job situations that require specific physical characteristics necessarily possessed by only one sex," such an analysis is relevant for claims that involve the discriminatory application of grooming policies, and does not extend to claims of facial discrimination. E.E.O.C Decision No. 72-1380, 4 F.E.P. Cases 846, 847; see also Phillips v. Martin Marietta Corp., 400 U.S. 542, 546 (1971).

  In addition, the EEOC's regulations provide, in pertinent part, that policies differentiating between individuals by relying on sex-based stereotypes do not warrant a BFOQ defense and are impermissible under Title VII. Phillips, 400 U.S. at 547 (citing 29 C.F.R. § 1604.1(a)(1)(ii)). The EEOC specifically identifies such stereotyped discriminatory policies as those which are based on assumptions of the comparative employment characteristics of different genders (i.e. that men are less capable of assembling intricate equipment; that women are less capable of aggressive salesmanship, etc). Id. Such policies tend to discriminate against individuals by overlooking their individual capacity as employees, and denying to them employment opportunities based solely on characteristics that are generally attributed to the group. A grooming policy such as Harrah's, on its face, neither makes any assumptions regarding the individual employment capacity of its employees, nor denies employment opportunities to a certain suspect class of its employees. Thus, while EEOC decisions are to be given great deference, nothing in the EEOC's determinations conflict with the findings of this Court. Indeed, the Equal Employment Opportunity Commission itself reviewed the Plaintiff's complaint and dismissed it as inadequate. (EEOC Report.) The Commission determined that the Plaintiff's allegations did not amount to gender-based or racial discrimination under Title VII. Because the EEOC was specifically established to handle employment discrimination claims, this Court takes notice of the EEOC findings in this particular case, which do not conflict with that of this Court, and will dismiss the Plaintiff's claim of facial discrimination under Title VII.

  7. Plaintiff's NJLAD Claim

  The Court finds that the Plaintiff has failed to bring a cognizable claim of facial discrimination under Title VII, and will dismiss the claim as a matter of law. The Plaintiff's NJLAD claim is subject to the same analysis as is used by federal courts in considering Title VII claims. Schurr v. Resorts Int'l Hotel Inc., 196 F.3d 486, 498 (3d Cir. 1999). Because Plaintiff has brought the same claim under Title VII and the NJLAD, the Court will rely on the above analysis to dismiss the Plaintiff's NJLAD claim of a facially-discriminatory grooming policy. Plaintiff's claim for discriminatory enforcement of that policy, in violation of the NJLAD, will survive this motion.

  B. Plaintiff's Cross-Motion for Partial Summary Judgment

  The Plaintiff Michael Wiseley has filed a cross-motion for partial summary judgment pursuant to Rule 56, Fed.R.Civ.P. Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). A genuine issue is one in which the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248(1986). The party moving for summary judgment has the initial burden of showing the basis for its motion. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). For the reasons stated in this Opinion, the Plaintiff has failed to meet this burden as to the facial discrimination claim and the claim will be dismissed as a matter of law. (See supra Section "E.")

  The Plaintiff however, has not limited his complaint to per se discrimination. In Part IV(C) of his cross-motion for summary judgment and Part III of his brief in support of his cross-motion, the Plaintiff alleges that Harrah's grooming policy violates Title VII because it has been applied in a discriminatory manner. (Pl. Br. at 32; Pl. Supp. Br. at 8.) The Plaintiff cites to the facts in his original complaint, and asserts that the grooming policy was enforced only against the white male employees in the Food and Beverage department of Harrah's and not the similarly situated female and black male employees who did not comply with the policy. (Id.)

  Plaintiff argues that even if the Court denies, as it has here, his motion for summary judgment as to his claim of facial discrimination, his claim of discriminatory application should not be dismissed. (Pl. Br. at 33.) Although the Defendants have not explicitly addressed this issue in their motion for partial dismissal, they have denied all of the Plaintiffs allegations pertaining to discriminatory application of the policy in their original Answer. (Ans., ¶¶ 25-30.) Because this claim is based on contested facts such that a reasonable jury could find for the Defendants on the issue of even-handed enforcement of gender-specific grooming policies, it presents a genuine issue of material fact and neither summary judgment nor dismissal are appropriate. This portion of the claim survives the 12(b)(6) motion and cross-motion for summary judgment, and will proceed on the merits.


  Plaintiff's Title VII and NJLAD claims will be partially dismissed for failure to state a cognizable claim of facial discrimination under those statutes. The Defendants' grooming policy contains specific requirements for different genders but is nonetheless permissible under Title VII. It does not constitute facial discrimination in violation of the Plaintiff's civil rights, so long as its enforcement is even-handed to both genders. As such, Plaintiff's Title VII claim of facial discrimination and the corresponding NJLAD claim will be dismissed as a matter of law. Thus, this Court will grant the Defendants' 12(b)(6) motion and will deny the Plaintiff's cross-motion for partial summary judgment.

  The part of the Plaintiff's Title VII and NJLAD claim that alleges discriminatory application of the grooming policy presents a cognizable claim under Title VII and NJLAD, and it survives the Defendants' 12(b)(6) motion, and also presents a genuine issue of material fact precluding granting Plaintiff's cross-motion for partial summary judgment, and will proceed on its merits.


  This matter having come before the Court upon the Defendants' motion for partial dismissal for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6), and Plaintiff's cross-motion for partial summary judgment pursuant to Rule 56, Fed.R. Civ. P., and the Court having reviewed the submissions of the parties, and for the reasons stated in the Opinion of today's date, and for good cause shown;

  IT IS, this 4th day of August, 2004, hereby

  ORDERED that Defendants' motion for partial dismissal [Docket Item 11-1] shall be, and hereby is, GRANTED; that Plaintiff's motion for partial summary judgment [Docket Item 13-1] shall be, and hereby is, DENIED; and

  IT IS FURTHER ORDERED that Plaintiff's Title VII and NJLAD claims of facial discrimination shall be DISMISSED WITH PREJUDICE; Plaintiff's remaining claims that Defendants' grooming policies, as actually applied, discriminate against long-haired Caucasian males in violation of Title VII and NJLAD may proceed.

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