                                  United States Court of Appeals,

                                          Eleventh Circuit.

                                            No. 97-4364.

 Kenneth HARPER, Daniel Gomez, Abraham Del Carmen, Brian Russell, Plaintiffs-Appellants,

                                                  v.

 BLOCKBUSTER ENTERTAINMENT CORPORATION, a Delaware corporation merged into
Viacom, Inc., Defendant-Appellee.

                                           April 29, 1998.

Appeal from the United States District Court for the Southern District of Florida. (No. 96-2461-CV-
DLG), Donald L. Graham, Judge.

Before COX and CARNES, Circuit Judges, and MARCUS*, District Judge.

       CARNES, Circuit Judge:

       The plaintiffs in this case are four males formerly employed by Blockbuster Entertainment

Corp. ("Blockbuster"). They brought this suit against Blockbuster under Title VII and the Florida

Civil Rights Act alleging that Blockbuster's grooming policy discriminated against them on the basis

of their sex and that they were wrongfully terminated in retaliation for protesting that policy. After

the district court granted Blockbuster's motion to dismiss the plaintiffs' complaint, the plaintiffs

appealed. For the reasons discussed below, we affirm the district court's order dismissing plaintiffs'

complaint.

                          I. FACTS AND PROCEDURAL HISTORY




   *
     Honorable Stanley Marcus was a U.S. District Judge for the Southern District of Florida
sitting by designation as a member of this panel when this appeal was argued and taken under
submission. On November 24, 1997, he took the oath of office as a United States Circuit Judge
of the Eleventh Circuit.
          For purposes of this appeal, we accept the allegations in plaintiffs' complaint as true. See

Harper v. Thomas, 988 F.2d 101, 103 (11th Cir.1993).

          In May of 1994, Blockbuster implemented a new grooming policy that prohibited men, but

not women, from wearing long hair. The plaintiffs, all men with long hair, refused to comply with

the policy. They protested the policy as discriminatory and communicated their protest to

supervisory officials of Blockbuster. Two of the plaintiffs were the subject of media stories

concerning their protest of the policy. All of the plaintiffs were subsequently terminated by

Blockbuster because they had refused to cut their hair and because they had protested the grooming

policy.

          The plaintiffs timely filed a charge with the Equal Employment Opportunity Commission

("EEOC"). After the EEOC issued right to sue letters, the plaintiffs filed a four-count complaint

alleging: (1) sex discrimination under Title VII, 42 U.S.C. §§ 2000e et seq. ("Title VII"); (2) sex

discrimination under the Florida Civil Rights Act of 1992, Fla. Stat. §§ 760.01 et seq. ("Florida

Civil Rights Act"); (3) unlawful retaliation under Title VII; and (4) unlawful retaliation under the

Florida Civil Rights Act.

          Blockbuster moved to dismiss the complaint pursuant to F.R.C.P. 12(b)(6). The district court

granted the motion, and this appeal followed.

                                   II. STANDARD OF REVIEW

          We review de novo a dismissal for failure to state a claim. "The standard of review for a

motion to dismiss is the same for the appellate court as it was for the trial court." Stephens v. H.H.S.,

901 F.2d 1571, 1573 (11th Cir.1990). A motion to dismiss is only granted when the movant

demonstrates "beyond doubt that the plaintiff can prove no set of facts in support of his claim which


                                                   2
would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80

(1957).

                                         III. DISCUSSION

                 A. COUNT I: THE TITLE VII SEX DISCRIMINATION CLAIM

          The plaintiffs allege that Blockbuster's grooming policy discriminates on the basis of sex

in violation of Title VII. In Willingham v. Macon Telegraph Pub. Co., 507 F.2d 1084, 1092 (5th

Cir.1975) (en banc), our predecessor Court held that differing hair length standards for men and

women do not violate Title VII, a holding which squarely forecloses the plaintiffs' discrimination

claim. See Bonner v. City of Prichard, 661 F.2d 1206, 1209-1210 (11th Cir.1981). Accordingly,

the district court correctly dismissed Count I.

   B. COUNT II: THE FLORIDA CIVIL RIGHTS ACT SEX DISCRIMINATION CLAIM

          The plaintiffs also allege that Blockbuster's grooming policy discriminates on the basis of

sex in violation of the Florida Civil Rights Act.

           The Florida courts have held that decisions construing Title VII are applicable when

considering claims under the Florida Civil Rights Act, because the Florida act was patterned after

Title VII. See Ranger Ins. Co. v. Bal Harbour Club, Inc., 549 So.2d 1005, 1009 (Fla.1989); Florida

State Univ. v. Sondel, 685 So.2d 923, 925 n. 1 (Fla.Dist.Ct.App.1996); Gray v. Russell Corp., 681

So.2d 310, 312 (Fla.Dist.Ct.App.1996); see also Paris v. City of Coral Gables, 951 F.Supp. 1584,

1585 (S.D.Fla.1995);       Kelly v. K.D. Construction of Fla., Inc., 866 F.Supp. 1406, 1411

(S.D.Fla.1994). No Florida court has interpreted the Florida statute to impose substantive liability




                                                    3
where Title VII does not.1 Therefore, for the same reasons the complaint fails to state a sex

discrimination claim under Title VII, it fails to state a sex discrimination claim under the Florida

Civil Rights Act. The district court correctly dismissed Count II.

                    C. COUNT III: THE TITLE VII RETALIATION CLAIM

        The plaintiffs allege that they were discharged by Blockbuster in retaliation for protesting

Blockbuster's grooming policy. To establish a prima facie case of retaliation under Title VII, a

plaintiff must demonstrate: (1) that he engaged in statutorily protected activity; (2) that he suffered

adverse employment action; and (3) that the adverse employment action was causally related to the

protected activity. See, e.g., Coutu v. Martin County Bd. of County Comm'rs, 47 F.3d 1068, 1074

(11th Cir.1995). A plaintiff engages in "statutorily protected activity" when he or she protests an

employer's conduct which is actually lawful, so long as he or she demonstrates "a good faith,

reasonable belief that the employer was engaged in unlawful employment practices." Little v.

United Technologies, Carrier Transicold Division, 103 F.3d 956, 960 (11th Cir.1997). However,

it is insufficient for a plaintiff "to allege his belief in this regard was honest and bona fide; the

allegations and record must also indicate that the belief, though perhaps mistaken, was objectively

reasonable." Id.

        The reasonableness of the plaintiffs' belief in this case is belied by the unanimity with which

the courts have declared grooming policies like Blockbuster's non-discriminatory. Every circuit to


   1
    Plaintiffs cite Andujar v. National Property & Casualty Underwriters, 659 So.2d 1214
(Fla.Dist.Ct.App.1995), to suggest that the Florida Civil Rights Act may have different
substantive standards than Title VII. Noting that Title VII and the Florida Civil Rights Act are
product of different sovereigns, the Andujar Court held that a judgment under Title VII does not
preclude, under the doctrine of res judicata, a later judgment under the Florida Civil Rights Act.
See id. at 1216-17. However, the court did not hold that the two statutes have different
substantive standards for imposing liability.

                                                  4
have considered the issue has reached the same conclusion reached by this Court in the Willingham

decision. See Longo v. Carlisle DeCoppet & Co., 537 F.2d 685, 685 (2d Cir.1976); Earwood v.

Continental Southeastern Lines, Inc., 539 F.2d 1349, 1351 (4th Cir.1976); Barker v. Taft

Broadcasting Co., 549 F.2d 400, 401 (6th Cir.1977); Knott v. Missouri Pac. R.R. Co., 527 F.2d

1249, 1252 (8th Cir.1975); Baker v. California Land Title Co., 507 F.2d 895, 898 (9th Cir.1974);

Dodge v. Giant Food, Inc., 488 F.2d 1333, 1336 (D.C.Cir.1973).2 The EEOC initially took a

contrary position, but in the face of the unanimous position of the courts of appeal that have

addressed the issue, it finally "concluded that successful litigation of male hair length cases would

be virtually impossible." EEOC Compliance Manual, § 619.1 (Bureau of Nat'l Affairs, Inc.1996).

Accordingly, the EEOC ran up a white flag on the issue, advising its field offices to administratively

close all sex discrimination charges dealing with male hair length. See id.

       Nonetheless, the plaintiffs contend that three decisions of the United States Supreme Court,

decided after Willingham, made it reasonable to believe that Blockbuster's grooming policy violates

the mandate of Title VII. However, as we will discuss below, none of the cases cited by the plaintiffs

call into question the continuing validity of Willingham; therefore, the plaintiffs' belief that

Blockbuster's grooming policy violated Title VII's prohibition against sex discrimination was not

reasonable.




   2
    The plaintiffs also argue that when judging the reasonableness of their belief, we should not
charge them with substantive knowledge of the law as set forth in Willingham and the cases cited
above. We reject the plaintiffs' argument because it would eviscerate the objective component of
our reasonableness inquiry. See Little, 103 F.3d at 960. If the plaintiffs are free to disclaim
knowledge of the substantive law, the reasonableness inquiry becomes no more than speculation
regarding their subjective knowledge.

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        The plaintiffs first point us to UAW v. Johnson Controls, Inc., 499 U.S. 187, 111 S.Ct. 1196,

113 L.Ed.2d 158 (1991). In Johnson Controls, the Court held that a company's policy of prohibiting

women capable of bearing children from working in battery manufacturing jobs was facially

discriminatory.3 Id. at 198, 111 S.Ct at 1203. That holding, however, is entirely consistent with the

Willingham Court's holding, and thus, fails to advance plaintiffs' argument. See Willingham, 507

F.2d at 1091-92 (holding that distinctions between men and women on the basis of fundamental

rights such as the right to bear children constitute discrimination on the basis of sex under Title VII).

        The plaintiffs also rely on Newport News Shipbuilding and Dry Dock Co. v. EEOC, 462 U.S.

669, 103 S.Ct. 2622, 77 L.Ed.2d 89 (1983), and City of Los Angeles, Dep't of Water and Power v.

Manhart, 435 U.S. 702, 98 S.Ct. 1370, 55 L.Ed.2d 657 (1978), to support their position. In

Manhart, the Court held that a policy requiring female employees to make larger contributions to

an employee pension fund than their male counterparts was discriminatory. See Manhart, 435 U.S.

at 711, 98 S.Ct. at 1377. The Court stated: "Such a practice does not pass the simple test of whether

the evidence shows treatment of a person in a manner which but for that person's sex would be

different." Id. (internal quotation omitted). In Newport News, the Court applied the test from

Manhart to an employer's policy of providing lesser health benefits to the spouses of male

employees than to the spouses of female employees, and concluded that the policy was

discriminatory. See Newport News, 462 U.S. at 683, 103 S.Ct. at 2631. The plaintiffs argue that the




   3
    The Court went on to hold that the company's policy did not constitute a bona fide
occupational qualification ("BFOQ"). See Johnson Controls, 499 U.S. at 204, 111 S.Ct. at 1206.
However, that portion of the court's decision is not relevant here, because we are not faced with
the question of whether Blockbuster's grooming policy constituted a BFOQ.

                                                   6
application of the "but-for" test in Manhart and Newport News, undermines the Willingham Court's

analysis and conclusions. We disagree for two reasons.

       First, the policies at issue in Newport News and Manhart related to employee health and

pension benefits.    The existence and extent of such benefits bear directly on employment

opportunity. Because health and pension benefits frequently represent a crucial component of an

employee's compensation, the practical effect of denying or reducing such benefits on the basis of

sex is to deny the employee an "employment opportunity" on the basis of sex. In contrast, the

grooming policy at issue in Willingham "related more closely to the employer's choice of how to run

his business than to equality of employment opportunity." 507 F.2d at 1091. Reasoning that Title

VII was intended to "guarantee equal job opportunity for males and females," we concluded in

Willingham that the grooming policy did not constitute sex discrimination. Id. Therefore, the

Supreme Court's holdings in both Newport News and Manhart are consistent with the reasoning and

conclusions of the Willingham Court. See Tavora v. New York Mercantile Exchange, 101 F.3d 907,

908 (2d Cir.1996).

       Second, the discrimination at issue in Newport News and Manhart was discrimination based

on sex alone. The Newport News and Manhart plaintiffs could not avoid the effects of the

discriminatory policies; they received lesser benefits simply because of their sex. Because the

discriminatory policies in those cases were aimed at a single immutable characteristic—the

plaintiffs' sex—a simple "but for" test effectively identified forbidden discrimination. In contrast,

the alleged discrimination at issue in Willingham was between members of the same sex based on

the neutral characteristic of hair length. The Willingham plaintiff was denied employment because

he chose not to cut his hair; however, males in general were not prohibited from working for the


                                                 7
defendant. Consequently, applying the "but-for" test from Newport News and Manhart to a

Willingham-type situation does not effectively identify forbidden discrimination, i.e., discrimination

that deprives members of a given sex of equal employment opportunity. The "but-for" test is

appropriate only where alleged discrimination is based on sex alone. Therefore, the Supreme Court's

use of that test in Newport News and Manhart does not affect the analysis or conclusions of the

Willingham Court.

       The plaintiffs chose to protest Blockbuster's grooming policy despite the existence of

long-standing binding precedent holding that such a policy was not discriminatory. No decision

cited by the plaintiffs has supplanted the reasoning or called into question the conclusions set forth

in that binding precedent. Therefore, we hold that the plaintiffs could not have had an objectively

reasonable belief that Blockbuster's grooming policy discriminated against them on the basis of their

sex. Accordingly, the district court correctly dismissed the plaintiffs' Title VII retaliation claim.

        D. COUNT IV: THE FLORIDA CIVIL RIGHTS ACT RETALIATION CLAIM

        The plaintiffs allege that Blockbuster violated the Florida Civil Rights Act by retaliating

against them for protesting its grooming policy. As discussed above, decisions construing Title VII

guide the analysis of claims under the Florida Civil Rights Act. Accordingly, because the plaintiffs

cannot maintain a retaliation claim under Title VII, we conclude that the district court correctly

dismissed the plaintiffs' Florida Civil Rights Act retaliation claim.

                                        IV. CONCLUSION

       For the reasons set forth above, we AFFIRM the district court's order dismissing the

plaintiffs' complaint.




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