Gay Flight Attendant Survives Motion to Get Rid of His Discrimination Claim about a Haircut

Is a Mohawk-style haircut so “extreme” that an airline would be justified in not allowing a male flight attendant to work a flight when he reported for duty thus groomed?

In Falcon v. Continental Airlines, 2013 U.S. Dist. LEXIS 171349 (D. N.J., Dec. 4, 2013), U.S. District Judge Jose L. Linares ruled that if gay flight attendant Ray Falcon can prove that Continental’s supervisors on duty at Newark Airport on September 23, 2010, knew he was gay and applied its grooming standards to him discriminatorily, he may have a sexual orientation discrimination claim under New Jersey’s Law Against Discrimination, denying summary judgment to the defendant on this count.  Falcon filed his claim in state court, but Continental removed it to federal court and moved for summary judgment.

A material fact in dispute is whether the supervisors involved in the incident knew that Falcon was gay.  He claims he was “out” and known to his supervisors as such, while they deny it, so there is a credibility issue.  He also claims, evidently, that he was subjected to this indignity because he is gay.   Supervisors claim they were just enforcing the airline’s “General Code of Conduct and Working Together Guidelines” which obligates employees in public contact positions to maintain a “professional appearance.”

When the supervisors were adamant about not letting Falcon work with the alleged Mohawk (Falcon maintains it was just a standard military cut, short at the sides and a bit longer on top), Falcon asked another attendant who had hair clippers to trim his top sufficiently to satisfy the supervisors, and he was allowed to work his scheduled flight to Paris.

Falcon asserts that the incident caused him significant emotional distress, requiring psychological treatment and causing him to miss some subsequent flights.  Falcon supplemented his discrimination claim with a battery claim (the haircut) and a claim of intentional infliction of emotional distress.

Judge Linares granted summary judgment to Continental on these two state tort claims, finding that Falcon could not assert battery when he had requested the other attendant to give him the haircut, and that this incident failed to come anywhere close to the high standard of outrageous conduct set by New Jersey courts in emotional distress claims arising from workplace incidents.

According to the opinion, Falcon continues to work as a flight attendant for Continental, and suffered no discipline or tangible losses as a result of the incident, but has been treated for distress stemming from this incident by a licensed psychologist, who prescribed medication for him, and has applied for benefits under the Family and Medical Leave Act to cover days when he missed flights as a result.

Ray Falcon is represented by Michael R. Lombardi and the firm Lombardi & Lombardi, Edison, NJ.  Continental is represented by attorneys from Buchanan Ingersoll & Rooney PC of Newark and Philadelphia.

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