There are instances in which the charging party will allege discrimination due to other appearance-related issues, such as a male alleging that he was discharged or suspended because he wore colored fingernail polish, or because he wore earrings, etc. The Commission believes that this type of case will be analyzed and treated by the courts in the same manner as the male hair-length cases. That is, the courts will say that the wearing of fingernail polish or earrings is a “mutable” characteristic that the affected male can readily change and therefore there can be no discrimination on the basis of sex under Title VII. The Commission further believes that conciliation of this type of case will be virtually impossible in view of the male hair-length cases. (See Fagan, Dodge, and Willingham, supra, § 619.2(d).) Therefore, when this type of case is received and the charge has been accepted to preserve the charging party’s appeal rights, the charging party is to be given a right to sue notice and his/her case dismissed.
619.8 Cross Recommendations
Government legal behavior have discovered you to definitely male tresses size restrictions would perhaps not break Term VII. These types of process of law have reported that doubting your preference for a particular setting from top, grooming, otherwise appearance is not gender discrimination within this Term VII of your own Civil-rights Act away from 1964, because amended. The latest Commission thinks the analyses employed by those individuals process of law within the the hair on your head length circumstances is likewise placed on the difficulty raised on your own fees out of discrimination, therefore and work out conciliation with this matter about impossible. Consequently, your own situation is dismissed and you will a straight to sue observe is issued herewith so you can get pursue the challenge in federal courtroom, for many who therefore appeal.
Appendix A good
In a March 26, 1986, decision, the United States Supreme Court ruled that an Air Force regulation prohibiting the wearing of unauthorized headgear did not violate the First Amendment rights of an Air Force officer whose religious beliefs prescribed the wearing of a yarmulke at all times. Goldman v. Weinberger, 475 U.S. 503, 39 EPD ¶ 35,947 (1986). The Air Force regulation, AFR 35-10, ¶ 16h(2)(f)(1980), provided that authorized headgear may be worn out of doors, but that indoors “[h]eadgear [may] not be worn . 
. . except by armed security police in the performance of their duties.”
S. Simcha Goldman, a commissioned officer of the Us Sky Push and you can a keen ordained Rabbi of your own Orthodox Jewish faith, used an effective yarmulke in health clinic in which the guy has worked due to the fact a medical psychologist. He wore they around his provider limit when outside. He was permitted to exercise up to, shortly after testifying just like the a safety witness on a legal-martial, the fresh new face-to-face counsel complained on the Healthcare Chief one to Goldman try within the ticket of AFR 35-10. At first, a medical facility Leader ordered Goldman not to ever wear their yarmulke outside of your own healthcare. When he would not follow, the newest Frontrunner ordered your to not ever wear it whatsoever if you are in the consistent. Goldman prosecuted the fresh new Secretary regarding Cover claiming you to definitely application of AFR 35-10 broken 1st Modification right to new totally free get it done from his faith.
The United States District Court for the District of Columbia enjoined the Air Force from enforcing the regulation against Goldman. The Court of Appeals for the District of Columbia Circuit reversed. The court said that the appropriate level of scrutiny to apply to a military regulation which clashes with a Constitutional right is neither strict scrutiny nor rational basis but “whether legitimate military ends were sought to be achieved.” Goldman v. Weinberger, 734 F.2d 1531, 1536, 34 EPD ¶ 34,377 (D.C. Cir. 1982). The full Court of Appeals denied a petition for rehearing en banc, with three judges dissenting.