Hodgdon v. Mt. Mansfield Co.

HODGDON_V_MT_MANSFIELD_CO.91-346; 160 Vt. 150; 624 A.2d 1122


[Opinion Filed 06-Nov-1992]

[Motions for Reagrument and Clarification Denied 19-Mar-1993]

 NOTICE:  This opinion is subject to motions for reargument under V.R.A.P. 40
 as well as formal revision before publication in the Vermont Reports.
 Readers are requested to notify the Reporter of Decisions, Vermont Supreme
 Court, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in
 order that corrections may be made before this opinion goes to press.


                                 No. 91-346


 Mary Hodgdon                                 Supreme Court

                                              On Appeal from
      v.                                      Lamoille Superior Court


 Mt. Mansfield Company, Inc.                  May Term, 1992



 Shireen A. Fisher, J. (jury-trial ruling)
 Dean B. Pineles, J. (sex-discrimination and invasion-of-privacy rulings)
 Joseph J. Wolchik, J. (handicap-discrimination ruling)

 David J. Mullett of Cheney, Brock & Saudek, P.C., Montpelier, for plaintiff-
    appellant

 David L. Cleary of David L. Cleary Associates, Rutland, and P. Kevin
    Connelly of Connelly, Sheehan & Moran, Chicago, Illinois, for defendant-
    appellee

 Edwin L. Hobson of Linton & Hobson and Richard Cassidy, Chair, Vermont
    Employment Lawyers Association, Burlington, for amicus curiae Vermont
    Employment Lawyers Association

 Jeffrey L. Amestoy, Attorney General, and Robert Appel, Assistant Attorney
    General, Montpelier, for amicus curiae Office of the Attorney General


 PRESENT:  Allen, C.J., Gibson, Dooley and Morse, JJ., and Peck, J. (Ret.),
           Specially Assigned


      GIBSON, J.   Plaintiff Mary Hodgdon appeals the superior court's
 decision that defendant Mt. Mansfield Company, Inc., did not discriminate
 against her on the basis of sex or handicap and did not invade her privacy
 when it fired her from her position as a chambermaid.  Plaintiff also
 appeals the trial court's decision to grant defendant's motion for a trial
 before the court on the handicap-discrimination claim.  We affirm the
 superior court's decision regarding plaintiff's claim of invasion of
 privacy and reverse the court's rulings on the sex- and handicap-
 discrimination claims.  We also hold that parties are entitled to trial by
 jury on claims for legal damages brought under the Fair Employment Practices
 Act (FEPA), but we affirm the decision to have trial by court in this case
 because plaintiff did not request such damages.
      Defendant operates a ski resort in Stowe.  Plaintiff began working for
 defendant as a chambermaid in August 1986.  She has not had natural upper
 teeth since 1981, but had a set of dentures made before she went to work for
 defendant.  She did not wear them, however, because they hurt her.
      During the fall of 1987, defendant hired Marguerite Pearson as its
 executive housekeeper.  Pearson was responsible for housekeeping schedules
 and standards, and reviewing staff performance.  She participated in dis-
 cussions on upgrading the image of the resort in order to obtain a "four-
 star" rating.  Patty Clark, her supervisor, mentioned that the appearance of
 members of the housekeeping staff, including plaintiff, needed improvement,
 and Pearson communicated this concern to her staff members.
      Pearson asked plaintiff to volunteer for layoff in October 1987, but
 assured her that she would be rehired in six weeks.  In the meantime,
 however, management personnel decided that plaintiff would not be allowed to
 return to work without dentures, despite her neat and clean appearance and
 her good work record.  On November 24, Pearson sent plaintiff a letter
 informing her that Mt. Mansfield was concerned about upgrading "the way
 employees are seen by the public" and that "employees will be expected to
 have teeth and to wear them daily to work."
      Plaintiff called Pearson upon receipt of the letter and explained that
 she had dentures but had not been able to wear them because they did not
 fit.  She asked to be allowed to return to work so that she could earn
 enough money to purchase a new set.  Pearson told plaintiff that she could
 not come back to work without dentures, but that she would hold plaintiff's
 job open until December 21.  The company fired plaintiff when she did not
 report to work on that date.
      Plaintiff filed suit, claiming that defendant violated FEPA, 21 V.S.A.
 {{ 495-496, by firing her because of a perceived handicap and because of her
 sex.  Plaintiff also brought claims for invasion of privacy, intentional
 infliction of emotional distress and wrongful discharge.  The trial court
 granted defendant's motion for summary judgment on the sex-discrimination
 and invasion-of-privacy claims and defendant's motion for trial before the
 court on the handicap-discrimination charge.  Plaintiff dismissed the
 infliction-of-emotional-distress and wrongful-discharge claims, and the case
 proceeded to trial solely on the handicap-discrimination claim.
      Plaintiff claims that the trial court erred by (1) granting defendant's
 motion for trial by court on the handicap-discrimination claim, (2)
 granting defendant's motion for summary judgment on the sex-discrimination
 and invasion-of-privacy claims, and (3) finding, as a matter of law, that
 plaintiff is not a handicapped individual under FEPA.
                                    I.
        Plaintiff first argues that, to the extent there were factual issues
 to resolve, she was entitled to trial by jury on her sex- and handicap-
 discrimination claims brought under FEPA.  In response, defendant argues
 that because FEPA did not exist at the time the Vermont Constitution was
 adopted, and because the statute does not provide for trial by jury,
 plaintiff has no right to a jury trial in her FEPA actions.
       Chapter I, Article 12 of the Vermont Constitution provides: "That
 when any issue in fact, proper for cognizance of a jury is joined in a court
 of law, the parties have a right to trial by jury, which ought to be held
 sacred."  This provision guarantees a right to jury trial to the extent that
 it existed at common law at the time of the adoption of the constitution in
 1793.  State Department of Taxes v. Tri-State Industrial Laundries, Inc.,
 138 Vt. 292, 297, 415 A.2d 216, 220 (1980).  The right to trial by jury is
 not, however, restricted to those common-law causes of action recognized by
 the Vermont courts in 1793.  Rather, we look at the nature of the action and
 whether it is the type of controversy that would have been tried by a jury
 under common law at that time.  Plimpton v. Town of Somerset, 33 Vt. 283,
 291-92 (1860).  As we stated in Plimpton:
           All the rights, whether then or thereafter arising,
           which would properly fall into those classes of rights
           to which by the course of the common law the trial by
           jury was secured, were intended to be embraced within
           this article.  Hence it is not the time when the
           violated right first had its existence, nor whether the
           statute which gives rise to it was adopted before or
           after the constitution that we are to regard as the
           criterion of the extent of this provision of the
           constitution; but it is the nature of the controversy
           between the parties, and its fitness to be tried by a
           jury according to the rules of the common law that must
           decide the question.
 Id. (emphasis in original).
      The United States Supreme Court has applied a similar test in
 construing the Seventh Amendment to the federal constitution, (FN1) preserving
 the federal right to trial by jury.  In Curtis v. Loether, 415 U.S. 189
 (1974), the Court held that the Seventh Amendment guaranteed the right to
 trial by jury in a housing discrimination action brought under Title VIII of
 the Civil Rights Act of 1968, 42 U.S.C. { 3612, in which the plaintiff
 sought actual and punitive damages.  415 U.S.  at 195.  The Court declared
 that "[a]lthough the thrust of the Amendment was to preserve the right to
 jury trial as it existed in 1791, it has long been settled that the right
 extends beyond the common-law forms of action recognized at that time."  Id.
 at 193.  The term "common law" in the Seventh Amendment means those suits in
 which legal rights or relief were determined as opposed to equitable rights
 or relief.  Id.  Because the plaintiff in Curtis sought actual and punitive
 damages, the traditional form of relief granted by courts of law, the Court
 determined that she was enforcing "legal rights" within the meaning of the
 Seventh Amendment and was entitled to a trial by jury.  Id. at 195.
      Thus, we look to the nature of a FEPA suit and the forms of relief
 available under that Act to determine whether there is a right to trial by
 jury.  FEPA makes it unlawful for an employer "to discriminate against any
 individual because of [her] . . . sex . . . or against a qualified
 handicapped individual."  21 V.S.A. { 495(a)(1).  It provides that any
 person aggrieved by a violation of the Act may bring an action to seek
 "damages or equitable relief, including restraint of prohibited acts,
 restitution of wages or other benefits, reinstatement, costs, reasonable
 attorney's fees and other appropriate relief."  21 V.S.A. { 495b(b)
 (emphasis added). (FN2) The meaning of this statute is plain on its face; it is
 clear that the Legislature intended to include legal damages among the
 remedies available under FEPA. (FN3) Because this "is the traditional form of
 relief offered in the courts of law," Curtis, 415 U.S.  at 196, we hold that
 parties claiming such damages under FEPA are entitled to trial by jury
 pursuant to  Chapter I, Article 12.
      Defendant argues that the right to a jury under the Vermont
 Constitution does not apply to statutory actions but only to common-law
 causes of action.  It maintains that because FEPA does not grant a right to
 jury trial, there is no such right in actions under the Act.  The petitioner
 in Curtis advanced the same argument, but the Court held that "[t]he
 Seventh Amendment does apply to actions enforcing statutory rights, and
 requires a jury trial upon demand, if the statute creates legal rights and
 remedies, enforceable in an action for damages in the ordinary courts of
 law."  415 U.S.  at 194.  Similarly, this Court has found that "[t]he
 [Vermont] Constitution was intended to provide for the future as well as the
 past, to protect the rights of the people . . . whether those rights then
 existed by the rules of the common law, or might from time to time arise out
 of subsequent legislation."  Plimpton, 33 Vt. at 291 (emphasis added).
 Thus, we conclude that the right to trial by jury under the Vermont
 Constitution is not limited to causes of action recognized at common law in
 1793.
      Defendant also argues that we should adopt the federal rule, under
 which there was no right to trial by jury in a Title VII action, because
 FEPA is patterned on Title VII of the Civil Rights Act of 1964, 42 U.S.C. {{
 2000e-2000e-17.  See Graff v. Eaton,    Vt.   ,    n.2, 598 A.2d 1383, 1384
 n.2 (1991) ("The consensus has been that there is no right to trial by jury
 under Title VII because the remedy it provides -- reinstatement and award of
 back pay -- is essentially equitable.").  The decisions denying trial by
 jury under the federal employment discrimination law, however, were based on
 the remedy provided under Title VII prior to its amendment in 1991.  See
 id.; Curtis, 415 U.S.  at 197.  Unlike FEPA, Title VII relief was essentially
 equitable in nature until 1991, when Congress amended Title VII extending
 the relief available to include compensatory and punitive damages.  See
 Civil Rights Act of 1991, Pub. L. No. 102-166, { 102, 105 Stat. 1071, 1072
 (1991) (codified at 42 U.S.C. { 1981a).  In 1981, the Vermont Legislature
 extended FEPA remedies to include "damages" by an amendment in which it
 provided for private actions under the Act.  See 21 V.S.A. { 495b(b).  Thus,
 we are not inclined to follow pre-1991 Title VII case law on the jury trial
 issue.  Accordingly, to the extent that factual issues are in dispute, the
 parties to an action under FEPA are entitled to trial by jury when the
 plaintiff requests legal damages.
      Finally, defendant argues that, even if claims under FEPA may be tried
 by jury, the right to a jury trial still turns on whether the complaint
 seeks legal or equitable relief.  Defendant maintains that because plaintiff
 in this case sought solely equitable relief in her FEPA claims, she is not
 entitled to trial by jury on these claims.  We agree.
      Although plaintiff maintains that she seeks to recover legal damages in
 her handicap- and sex-discrimination claims, in her complaint, she requests
 "back pay, restitution of wages, and other benefits including salary
 increases, costs, reasonable attorney fees and such other relief as the
 court deems just and proper."  Because plaintiff lists only equitable forms
 of relief in this request, we find that "other relief that the court deems
 just and proper" cannot be construed to include legal damages.  Therefore,
 we conclude that plaintiff is not entitled, on the present state of her
 complaint, to trial by jury on her claims under FEPA.
                                     II.
      Plaintiff also claims that the trial court erred in granting
 defendant's motion for summary judgment on the sex-discrimination and inva-
 sion-of-privacy claims.  On appeal of an order granting summary judgment, we
 apply the same standard as the trial court.  Kelly v. Town of Barnard, 155
 Vt. 296, 299, 583 A.2d 614, 616 (1990).  To prevail on summary judgment, the
 moving party has the burden of establishing that no genuine issues of
 material fact exist.  In determining if there is a genuine issue of material
 fact, we give the opposing party the benefit of all reasonable doubts, and
 we regard all properly supported allegations presented by the opposing party
 as true.  Messier v. Metropolitan Life Ins. Co., 154 Vt. 406, 409, 578 A.2d 98, 99-100 (1990).
                                     A.
      Plaintiff's sex-discrimination claim asserts that defendant violated
 FEPA by requiring her to wear dentures as a condition of employment while no
 such requirement was imposed on male employees.  She argues that summary
 judgment on this claim was improper on two grounds.  First, plaintiff
 contends that there were material facts in dispute.  We agree.
      The trial court applied the shifting-burden analysis first established
 in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973), and set
 out by this Court in State v. Whitingham School Board, 138 Vt. 15, 19, 410 A.2d 996, 998 (1979).  Under McDonnell Douglas, plaintiff has the initial
 burden of establishing a prima facie case of disparate treatment.  This
 burden is a relatively light one.  Whitingham School Board, 138 Vt. at 19,
 410 A.2d  at 998; see Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981) (plaintiff must prove that she applied for available
 position for which she was qualified, but was rejected under circumstances
 which give rise to inference of unlawful discrimination).  Establishing a
 prima facie case essentially raises a presumption of unlawful
 discrimination.  Burdine, 450 U.S.  at 253.
      Under McDonnell Douglas, once plaintiff has established a prima facie
 case, the burden shifts to the employer "to articulate some legitimate,
 nondiscriminatory reason for the employee's rejection."  411 U.S.  at 802.
 Shifting the burden to the employer to rebut the prima facie case serves to
 frame the factual issue.  Burdine, 450 U.S.  at 255.  If the employer meets
 its burden, the burden then shifts back to the plaintiff to prove that the
 employer's proffered reason is a pretext.  Id. at 256.
      In this case, the trial court ruled that plaintiff had established a
 prima facie case by showing that she was terminated because she did not wear
 dentures while two male employees working in the maintenance department were
 not required to wear dentures.  It concluded, however, that defendant had
 rebutted the prima facie case by showing its employment decision was based
 on nondiscriminatory considerations.  The court found that defendant
 legitimately imposed higher "grooming" standards for the housekeeping
 employees because employees in this department have direct contact with
 guests of the resort while those in the maintenance department have no
 similar contact.   Consequently, the burden shifted back to plaintiff, and
 the court concluded that plaintiff failed to demonstrate that defendant's
 nondiscriminatory reason was mere pretext.  Thus, on cross motions for
 summary judgment, the court ruled for defendant.
       Plaintiff disputes the court's finding regarding guest contact,
 maintaining that employees of both departments have similar guest contact.
 We agree that plaintiff's evidence indicated that one of the maintenance
 workers who had lost his teeth had contact with the public to the same
 extent as plaintiff.  According to plaintiff, he met and spoke with guests
 in the parking lot and while shoveling the driveway.  He also helped guests
 when their cars were stuck in the snow.  In addition, plaintiff presented
 evidence indicating that other "grooming" standards, such as those regarding
 hair length, were not enforced against male employees.  Taking plaintiff's
 allegations as true, we conclude that summary judgment for defendant was
 improper.  The evidence indicates there is a factual dispute regarding
 employee-guest contact that is central in this case.  We, therefore, hold
 that the trial court erred in granting summary judgment on the sex-
 discrimination claim.
      We also note that in reaching the decision to grant summary judgment in
 favor of defendant, the trial court considered subsequent acts of the
 employer.  The court concluded that "the fact that shortly after plaintiff's
 termination Ms. Pearson refused to hire a male without teeth for the
 housekeeping staff shows that the defendant's action was not based on sex
 discrimination."  We do not find this evidence determinative.  The fact that
 defendant later refused to hire another man without teeth may be relevant to
 defendant's intent at the time of plaintiff's termination.  It does not,
 however, show that its decision to fire the female employee without teeth
 while continuing to employ two men without teeth was not sex discrimination.
      Although we reverse the summary judgment on the sex-discrimination
 claim because there is an issue of material fact, we also address plain-
 tiff's second claim of error because it is likely to arise again on remand.
 See In re Illuzzi, No. 91-515, slip op. at 4 (Vt. Sept. 4, 1992) (on
 grounds of judicial economy, Court addressed issue likely to arise on
 remand).   Plaintiff contends that the trial court incorrectly allocated
 burdens of proof between the parties.  While the court applied the standard
 set out in McDonnell Douglas, 411 U.S.  at 802-04, plaintiff maintains that,
 because she presented direct evidence that gender played a motivating factor
 in defendant's decision to fire her, the court should have allocated burdens
 according to Price Waterhouse v. Hopkins, 490 U.S. 228, 241 (1989). (FN4)
      FEPA is patterned on Title VII of the Civil Rights Act of 1964, and the
 standards and burdens of proof under FEPA are identical to those under Title
 VII.  Graff v. Eaton, ___ Vt. at ___, 598 A.2d  at 1384.  Both McDonnell
 Douglas and Price Waterhouse were actions brought under Title VII.  We
 adopted the McDonnell Douglas framework under FEPA in 1979, see Whitingham
 School Board, 138 Vt. at 19, 410 A.2d  at 998, but adopted the Price
 Waterhouse framework in 1991, after the decision by the trial court herein.
 See Graff,     Vt. at    , 598 A.2d  at 1384.
      The Price Waterhouse framework is invoked when the plaintiff initially
 establishes that her sex played a motivating part in an employment decision.
 If the plaintiff makes this initial showing, then the burden shifts to the
 employer and remains with the employer who "may avoid a finding of liability
 only by proving that it would have made the same decision even if it had not
 allowed gender to play such a role."  490 U.S.  at 244-45 (footnote omitted).
 The employer's burden under this framework is no different from establishing
 an affirmative defense.  Id. at 246.
      We adopted the Price Waterhouse framework under FEPA in Graff, but
 concluded that, under the state statute, it is for the jury to determine
 initially whether the plaintiff's evidence establishes that her sex was a
 motivating factor in the defendant's employment decision.  Id. at ___, 598 A.2d  at 1385.  If the plaintiff fails to make this initial showing, then the
 McDonnell Douglas analysis is applicable.  Nevertheless, unless the trial
 court finds that the plaintiff's evidence is insufficient to make this
 preliminary showing as a matter of law, under Vermont law, the issue must go
 to the jury.  Id.
                                     B.
      Plaintiff argues that summary judgment was improper on the invasion-of-
 privacy claim.  She asserts that the trial court usurped the jury's role by
 deciding as a matter of law that the letter defendant sent -- informing
 plaintiff that she could not return to work without dentures -- was not a
 substantial intrusion that could be highly offensive to a reasonable
 person.  We disagree.
      The right of privacy is the right to be let alone.  Restatement
 (Second) of Torts { 652A (1977).  The Restatement of Torts 2nd identifies
 four forms of invasion of privacy.  Only one, the intrusion upon seclusion,
 does not require publicity of a person's private interests or affairs.  Id.
 { 652B.  To state a cause of action for intrusion upon seclusion, the
 plaintiff must allege "an intentional interference with [her] interest in
 solitude or seclusion, either as to [her] person or as to [her] private
 affairs or concerns, of a kind that would be highly offensive to a
 reasonable [person]."  Id.   Moreover, the intrusion must be substantial.
 Id.
      We agree with the trial court that the single letter from defendant
 threatening termination, although perhaps insensitive under the circum-
 stances in this case, was insufficient to constitute an invasion of privacy
 as a matter of law.  There was simply no substantial intrusion and no error
 in the trial court's ruling.  See DeAngelo v. Fortney, 357 Pa. Super. 127,
 131, 515 A.2d 594, 595 (1986) (one telephone call and one mailing from
 contractors soliciting business insufficient to establish invasion of
 privacy); Corder v. Champion Road Machinery Int'l Corp., 283 S.C. 520, 525-
 26, 324 S.E.2d 79, 82 (S.C. Ct. App. 1984) (no invasion of privacy where
 employer told plaintiffs they would be fired unless they withdrew workers'
 compensation claims and then mailed them each a letter of termination). (FN5)
                                      III.
      Plaintiff also argues that the trial court erred by ruling, as a matter
 of law, that she is not a handicapped person under FEPA.  FEPA prohibits
 employers from discriminating against a qualified handicapped individual,
 unless a bona fide occupational qualification so requires.  21 V.S.A. {
 495(a)(1).  The first issue in any FEPA handicap-discrimination claim is
 whether the plaintiff is a "handicapped individual" and thus within the
 protection of the Act.  A "handicapped individual" is defined as a person
 who:
         (A) has a physical or mental impairment which
         substantially limits one or more major life
         activities;

         (B) has a history or record of such an impairment; or

         (C) is regarded as having such an impairment.
 21 V.S.A. { 495d(5).  Plaintiff in this case argues that she is a
 handicapped individual under the third category because she claims she was
 regarded as having a "physical . . . impairment which substantially limits
 one or more major life activities."  The Act defines these terms as follows:

           "Physical or mental impairment" means
             (A) any physiological disorder or condition, cosmetic
           disfigurement, or anatomical loss affecting one or more
           of the following body systems: neurological;
           musculoskeletal; special sense organs; respiratory,
           including speech organs; cardiovascular; reproductive;
           digestive; genito-urinary; hemic and lymphatic; skin; or
           endocrine. . . .

 Id. { 495d(7)(A).

           "Substantially limits" means the degree that the
           impairment affects an individual's employability.  A
           handicapped individual who is likely to experience
           difficulty in securing, retaining, or advancing in
           employment would be considered substantially limited.

 Id. { 495d(8).

           "Major life activities" means functions such as caring
           for one's self, performing manual tasks, walking,
           seeing, hearing . . . [and] working. . . .

 Id. { 495d(9).

      Finally, a person "[i]s regarded as having such an impairment" when
 she:
           (A) has a physical or mental impairment that does not
           substantially limit major life activities but that is
           treated by an employer as constituting such a
           limitation;

           (B) has a physical or mental impairment that
           substantially limits major life activities only as a
           result of the attitudes of others toward such
           impairment; or

           (C) has none of the impairments defined in subdivision
           7(A) of this section but is treated by an employer as
           having such an impairment.
 Id. { 495d(11).  Plaintiff maintains that she has a physical impairment that
 does not substantially limit major life activities but that defendant
 treated her as though she had such a limitation.  We agree that plaintiff's
 lack of upper teeth is a physical impairment within the meaning of the act
 because it is a cosmetic disfigurement and an anatomical loss affecting the
 musculoskeletal and digestive systems.  See id. { 495d(7)(A).  Plaintiff
 does not, however, regard herself as handicapped.  Rather, she claims that,
 by firing her solely because she has no upper teeth, defendant treated her
 as though she were handicapped.
      Defendant contends that it does not regard plaintiff as handicapped,
 but simply fired her because she did not comply with the requirement that
 she wear dentures.  The superior court agreed, concluding that defendant
 perceived plaintiff as a woman who would not wear her dentures and simply
 told her that she would have to wear them as a condition of employment,
 nothing more.  The court's decision rested on the underlying conclusion that
 plaintiff's failure to retain this particular job did not constitute being
 limited in a major life activity, namely, working, and, consequently,
 defendant's failure to retain her did not indicate that it regarded her as
 handicapped.  We believe the court's reasoning is flawed.
      The definition of "handicapped individual" under FEPA is identical to
 the definition under the federal Rehabilitation Act of 1973, 29 U.S.C. {{
 701-796i, which prohibits federally funded employers from discriminating
 against handicapped individuals who are otherwise qualified for the job in
 question.  Compare 21 V.S.A. { 495d(5) with 29 U.S.C. { 706(7)(B).  More-
 over, the Rehabilitation Act is governed by regulations almost identical to
 the other definitions in { 495d of FEPA.  See, e.g., 45 C.F.R. { 84.3
 (defining "handicapped person," "physical or mental impairment," "major life
 activities," "is regarded as having an impairment").  Because the Vermont
 Legislature patterned our handicap-discrimination statute on federal
 legislation, we look to federal case law for guidance in construing the
 definitions at issue.  See Graff, ___ Vt. at ___, 598 A.2d  at 1384-85
 (relying on case law construing Title VII and federal age-discrimination
 statute in construing FEPA in sex-discrimination claim).
      In School Board of Nassau County, Florida v. Arline, 480 U.S. 273
 (1987), the Court discussed the purpose of including persons regarded as
 handicapped within the protection of the Rehabilitation Act.  By extending
 coverage to those persons who are regarded as handicapped, Congress
 intended, in part, to prohibit discrimination based on a physical
 impairment, where that impairment only affects major life activities as a
 result of attitudes of others toward the impairment.  Id. at 282-83.  The
 Court noted:
         The Senate Report provides as an example of a person who
         would be covered under this subsection "a person with
         some kind of visible physical impairment which in fact
         does not substantially limit that person's functioning."
         Such an impairment might not diminish a person's
         physical or mental capabilities, but could nevertheless
         substantially limit that person's ability to work as a
         result of the negative reactions of others to the
         impairment.
 Id. (quoting S.Rep. No. 93-1297, at 64) (citation and footnote omitted). (FN6)
 Moreover, the regulations promulgated by the Department of Health and Human
 Services include "cosmetic disfigurement" among the physical impairments
 covered by the Act.  45 C.F.R. { 84.3(j)(2)(i)(A).  As the Arline Court
 acknowledged, a cosmetic disfigurement cannot substantially limit any of the
 listed major life activities except the ability to work, and even in this
 regard, only as a result of the attitudes of others toward the impairment.
 480 U.S at 283, n. 10. (FN7)
      We believe this case presents precisely the type of visible physical
 impairment discussed in Arline.  Plaintiff has a physical impairment, lack
 of upper teeth, that does not substantially limit her in any major life
 activity.  Nonetheless, defendant treated her as if she had such a limiting
 condition because it decided that a visible physical impairment rendered
 plaintiff unfit to fill a position in which she had some contact with
 defendant's guests.  Defendant, thus, treated plaintiff as if her ability to
 work were substantially limited by her impairment.  Cf. Chico Dairy Co.
 Store No. 22 v. West Virginia Human Rights Commission, 181 W.Va. 238, 247,
 382 S.E.2d 75, 84-85 (1989) (employer who regarded employee with sunken and
 hollow eye socket "unsavory and unacceptable" to deal with customers does
 not establish employee as handicapped individual under state statute that
 did not include "is regarded as" clause of federal Rehabilitation Act).
      We distinguish the instant case from those relied on by defendant on
 two grounds.  In one category of cases, the plaintiffs had no physical or
 mental impairments.  See, e.g. de la Torres v. Bolger, 610 F. Supp. 593, 597
 (N.D. Tex. 1985) (left-handed postal worker fired for slowness had no
 statutorily recognizable impairment); Tudyman v. United Airlines, 608 F. Supp. 739, 746 (C.D. Cal. 1984) (avid body builder who voluntarily exceeded
 the maximum weight for flight attendant had no physical impairment).  These
 cases were brought under the federal counterpart to the third prong of
 subsection (11), { 495d(11)(C), under which a plaintiff having no physical
 or mental impairment must show that the employer treated the employee as
 having such an impairment.  The third prong is not at issue in this case.
 Plaintiff, here, asserts her claim under the first prong, {495d(11)(A): she
 has an impairment; the employer treated it as substantially limiting her
 ability to work.
      The other category of cases defendant relies on concludes that the
 plaintiffs simply failed to meet the unique qualifications required for the
 job at issue.  See, e.g., Daley v. Koch, 892 F.2d 212, 215 (2d Cir. 1989)
 (applicant for position of New York City police officer unable to meet
 unique qualifications because of "poor judgment, irresponsible behavior and
 poor impulse control" could not be considered a handicapped person under
 the Act); Forrisi v. Bowen, 794 F.2d 931, 933 (4th Cir. 1986) (utility
 systems repairer, fired because of his fear of heights, had no impairment
 causing significant barrier to employment); Elstner v. Southwestern Bell
 Tel. Co., 659 F. Supp. 1328, 1343 (S.D. Tex. 1987), aff'd, 863 F.2d 881
 (5th Cir. 1988) (knee problem only affected plaintiff's ability to climb
 telephone poles and thus only disqualified him from positions requiring pole
 climbing).  The employers in these cases regarded the employees' impairments
 as preventing them from performing a single job because the job involved a
 particular activity, such as climbing telephone poles.
      Here, however, defendant regards plaintiff as unfit to be seen by
 customers.  This is not a qualification unique to the position from which
 she was fired, but, rather, is to regard plaintiff as substantially limited
 in her ability to work.  Cf. E.E. Black, Ltd. v. Marshall, 497 F. Supp. 1088, 1102 (D. Haw. 1980) (employer who perceived applicant with congenital
 back anomaly as poor risk for heavy labor regarded employee as substantially
 limited in his ability to work).
      Finally, defendant argues that this case simply involves enforcement of
 a grooming standard.  We believe defendant's characterization of its policy
 is incorrect.  Requiring an employee to conceal a visible physical impair-
 ment as a condition of employment is not equivalent to requiring an employee
 to be clean or wear a uniform.
      In determining that plaintiff is a handicapped individual under FEPA,
 we make no decision regarding the factually dissimilar cases relied on by
 defendant.  We decide only that when an employer makes an employment
 decision based on its belief that an employee with a visible physical
 impairment is not fit to work in a position involving any customer contact,
 then the employer has treated the impairment as substantially limiting the
 employee's ability to work.  In such circumstances, the employee is a handi-
 capped individual under FEPA.  The employee must still show that she is a
 "[q]ualified handicapped individual . . . capable of performing the
 essential functions of the job."  21 V.S.A. { 495d(6).  And the employer may
 still show that a particular physical condition is a bona fide occupational
 qualification for the particular job.
      Reversed and remanded, except for the rulings on the invasion-of-
 privacy claim and the right to jury trial, which are affirmed.


                                    FOR THE COURT:



                                    ______________________________
                                    Associate Justice



FN1.    The Seventh Amendment provides:
     In suits at common law, where the value in controversy shall
     exceed twenty dollars, the right of trial by jury shall be
     preserved, and no fact tried by a jury shall be otherwise
     reexamined in any Court of the United States, than according to
     the rules of the common law.

FN2.    Defendant maintains that this court should not address the issue of
damages because the trial court's disposition of the FEPA counts precluded
it from considering the type of relief available under the Act.  While in
general we do not decide issues that have not been addressed below, in this
case we find it necessary to resolve the issue concerning damages in order
to address the jury trial issue.

FN3.    The court in Buckley v. American International Adjustment Co., No.
91-242 (March 26, 1992), was incorrect to the extent that it determined
that compensatory damages are not available under FEPA.

FN4.    Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), was superseded by
the Civil Rights Act of 1991, Pub. L. No. 102-166, { 107, 105 Stat. 1071,
1075 (1991) (codified at 42 U.S.C. { 2000e-2), which provides that the
complaining party establishes unlawful employment practice by demonstrating
that race, color, religion, sex, or national origin was a motivating factor
in the employment decision, even if other factors also motivated the decision.

FN5.    Corder v. Champion Road Machinery Int'l Corp., 283 S.C. 520, 324 S.E.2d 79 (S.C. Ct. App. 1984), was overruled by S.C. Code Ann. { 41-1-80
(prohibiting employer retaliation against employee where employee files
workers' compensation claim).

FN6.    The Arline Court provides two examples from the Congressional
Record of discrimination based on the attitudes of others toward a visible
physical impairment.  In the first case, a child with cerebral palsy was
excluded from public school because his teacher believed that his physical
appearance "'produced a nauseating effect'" on classmates.  Arline, 480 U.S. 
at 282, n.9 (quoting 117 Cong. Rec. 45974 (1971)).  In the second case, a
woman with arthritis was denied a job solely because college trustees
believed that "'normal students'" should not be exposed to her.  Id.
(quoting 118 Cong. Rec. 36761 (1972)).  The legislative history indicates
that Congress intended to prohibit such discrimination when it extended the
Rehabilitation Act to cover those individuals regarded as handicapped
although not substantially limited in any major life activity.

FN7.    FEPA also lists a "cosmetic disfigurement" under the definition of
physical impairment, 21 V.S.A. { 495d(7)(A), and includes "the attitudes of
others toward such impairment" as capable of substantially limiting a life
activity.  Id. { 495d(11)(B).