(Reuters) – The American Civil Liberties Union on Friday called on Alaska Airlines to adopt a more flexible uniform policy for flight attendants, saying it has a rigid gender-based dress code that unlawfully discriminates against nonbinary employees.

The ACLU in a letter to Alaska Airlines General Counsel Kyle Levine said requiring flight attendants to choose either entirely male or female uniforms bars nonbinary workers from expressing their identity and violates state and federal anti-discrimination laws.

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The ACLU represents nonbinary Alaska Airlines flight attendant Justin Wetherell, who it said often calls out of work because of the anxiety they feel surrounding the company’s dress code.

“These rigid, binary uniform requirements are more than a mere inconvenience,” ACLU lawyers wrote. “The uniform policy demeans employees who do not conform to gender stereotypes and materially interferes with their ability to do their jobs under equal terms and conditions as other employees.”

Seattle-based Alaska Airlines in a statement provided by a spokesperson said it is a leader in the industry when it comes to inclusivity in its uniform and grooming standards.

The airline said that over the past year, it has introduced new guidelines such as gender-neutral hair policies and allowing flight attendants to select any style of pants and parkas, regardless of their gender identity.

“We are committed to continuing to explore uniform and grooming standards for our flight attendants,” the airline said.

Sex-based employee dress codes have come under increased scrutiny in recent years, particularly as they apply to transgender people. But far less attention has been paid to the impact that uniform policies have on nonbinary workers, and few if any lawsuits have been filed raising the issue.

The ACLU in its letter said Alaska Airlines allows transgender flight attendants to wear uniforms that reflect their gender identity. But the company does not similarly accommodate nonbinary workers such as Wetherell who may wish to mix pieces of male and female uniforms.

Flight attendants who choose a male uniform, for example, must wear pants, shirts, and cardigans designed for men, the ACLU said, and cannot select pieces from the female uniform such as a scarf or skirt.

The ACLU said Wetherell often experiences anxiety and panic attacks leading up to scheduled shifts, which has resulted in them trading out shifts or calling out sick on multiple occasions. Wetherell frequently avoids working as a flight attendant in favor of their other job as a flight attendant instructor, for which the dress code is more flexible, according to the letter.

The ACLU said Alaska Airlines’ policy discriminates against nonbinary workers based on their “gender identity, self-image, appearance, behavior, or expression,” in violation of the Washington Law Against Discrimination, and based on their sex in violation of Title VII of the Civil Rights Act of 1964.

Although a complaint has currently only been filed with a state agency, let’s assume the employee files a complaint with the EEOC. You are the EEOC investigator investigating this complaint. What statutory factors must be established in order to create a prima facie case? Cite the statute, the type of claim, and identify and explain each element of that claim. Then, apply the statute, and relevant case law*, to our case to arrive at a conclusion as to whether a federal law has been violated. While in prior essays, I only asked you to assess the plaintiff’s prima facie claim, EEOC investigators (and HR professionals) must also determine that, if there is a violation of a federal law, does the defendant have a legal defense? Thus, in this essay, after assessing the plaintiff’s case, discuss whether the defendant could assert a viable defense to plaintiff’s claim that would be applicable in this case (it is ok to say none of the defenses are valid in this case, but explain why). In discussing defenses, cite specifically to the defenses mentioned in the lecture or textbook.


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