District Court For The EDNY Denies Motion To Dismiss Selective Enforcement Gender Discrimination And Retaliation Claims Related To Enforcement Of Employer's Hair Policy

In Visecchia v. Alrose Allegria LLC, a recent decision from the United States District Court for the Eastern District of New York, the court granted in part and denied in part a motion to dismiss claims of gender discrimination and retaliation brought by a hotel chef against his former employer alleging that the employer selectively enforces a hair policy in a manner that discriminates against male employees. In his complaint, plaintiff Richard Visecchia Jr. alleged he had long hair since he began working for the Allegria Hotel (the "Hotel") as a line cook in 2009. He also stated that, in 2012, Hotel management directed him to cut his hair because it was "too long" under the Hotel's hair policy, which reads as follows:

Hair must be clean, trimmed, well brushed and neat at all times, Extreme style flowers [sic], colored ribbon's [sic], beaded, braided or streaked hair is not permitted. Color should be maintained at neutral tones. Men's hair must be above the shirt collar. Side burns should not exceed one inch in length and should be neatly trimmed. No other type of hair covering should be worn unless considered a part of the uniform.

Visecchia claimed that, in response to the directive from management asking him to cut his hair, he complained to the Hotel that the hair policy was unlawfully discriminatory towards male employees. He further claims that, after he did not cut his hair, the Hotel's Human Resources Department issued a written warning instructing him to cut his hair by October 15, 2013 or face possible disciplinary action, including potential termination. Finally, Visecchia alleges that he did not comply with the written warning and his employment was terminated on or around October 16, 2013.

After his termination, plaintiff brought action against the Hotel alleging 1) employment discrimination on the basis of gender under Title VII of the Civil Rights Act ("Title VII") and New York State Human Rights Law (the "NYSHRL") and 2) federal and state law claims of unlawful retaliation for engaging in activities protected by the aforementioned statutes. The Hotel filed a motion to dismiss on the basis that the alleged instances of discrimination and retaliation do not give rise to actionable claims under Title VII and the NYSHRL. In response to the motion to dismiss the gender discrimination claims, plaintiff argued that 1) the Hotel's hair policy is "inherently discriminatory" because it prescribes different hair lengths for men and...