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Article Excerpt
I. INTRODUCTION
Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against employees when making employment decisions. (1) Nevertheless, when employers do partake in discriminatory decision-making, they are offered the statutory defense of the bona fide occupational qualification (BFOQ). The BFOQ defense allows employers to intentionally discriminate based on gender by adopting an otherwise facially discriminatory employment practice if reasonably necessary to the normal operation of the business. (2) While the Supreme Court has held that this defense should be interpreted narrowly, it is still available if employers are able to prove that all or substantially all of the members of one gender cannot successfully perform the job duties essential to fulfill the employer's primary business function. (3) If an employer is successful in offering the defense, gender discrimination is legally permitted. Thus, by utilizing the BFOQ defense, employers are permitted to partake in the exact discriminatory practices that Title VII directly seeks to forbid. Accordingly, Title VII seems to acknowledge that under certain circumstances discrimination really is acceptable. However, a deeper examination of these circumstances invites the question: Should the BFOQ exception still exist?
Because permitting discrimination under Title VII seems fundamentally contrary to the anti-discrimination purpose of the statute, this article questions whether the BFOQ defense is consistent with the aims of Title VII or whether, in actuality, the defense undermines the Act's effectiveness by providing a loophole for employers to participate in the discriminatory practices Title VII seeks to forbid. In the end, this article considers four differing viewpoints on the BFOQ defense: (1) the BFOQ defense should be broadened to represent the needs of society and the practices that some courts already permit; (2) the defense should remain as is because it appropriately balances customer and employer rights against employee rights; (3) the defense is necessary in very limited circumstances, but the exception should be narrowed to permit discrimination only in the utmost imperative circumstances; and (4) the BFOQ defense is inconsistent with the aims of Title VII and should no longer be permitted.
Although the BFOQ exception is permitted for both religion and national origin, it is most commonly and most controversially utilized in gender discrimination suits. (4) Therefore, this note will focus solely on the defense as applied to gender discrimination cases. Part I begins by providing general information on the BFOQ defense, including a discussion of the BFOQ framework and the history of the defense. Part II examines the successful and unsuccessful use of the defense, exploring when employers' motives have achieved or failed to meet the BFOQ requirements. Part III discusses the inconsistencies that have occurred in the application of this defense. Because the BFOQ is available in gender discrimination, but not in race discrimination, Part IV looks to the reasons Congress provided a gender BFOQ. In response, Part V posits on the actual and perceived differences between men and women and considers if any significant differences exist that validate Title VII's authorization of gender discrimination. Part VI then questions whether the defense to gender discrimination should still be available. Arguments both for and against the BFOQ defense are presented, with special thought paid to the question of whether the defense is actually consistent with Title VII. Finally, this article concludes that the defense, though unquestionably problematic in theory and application, is a necessary component for the workability of Title VII.
II. BACKGROUND OF THE BFOQ DEFENSE
A. Jurisprudence
The BFOQ defense is a statutory defense available under Section 703 of Title VII of the Civil Rights Act of 1964. (5) Title VII is the primary federal statute providing protection against workplace discrimination, mandating:
It shall be an unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin. (6)
The Act covers a wide range of employment discrimination claims, including those based on hiring, firing, promotion, and conditions or benefits of employment. (7) Title VII was enacted in 1964 to "prohibit all practices in whatever form which create inequality in employment opportunity due to discrimination on the basis of race, religion, sex, or national origin." (8) The bona fide occupational qualification defense in Title VII allows intentional discrimination in some circumstances, stating:
Notwithstanding any other provision of this subchapter ... it shall not be an unlawful employment practice for an employer to hire and employ employees ... on the basis of his religion, sex, or national origin in those certain instances where religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise. (9)
Although the defense is available for gender, religion, and national origin-based hiring, it is not available in race discrimination cases. (10) This suggests that Title VII's framers believed that racial discrimination was somehow different than discrimination based upon gender; a belief that it was more valuable or important to protect against racial discrimination.
The legislative history of the BFOQ defense is limited, sometimes causing courts to struggle with its interpretation. (11) The lack of legislative history is partially due to the fact that sex discrimination, the main type of case to utilize the BFOQ, was not originally included in the statutory language of Title VII. (12) Instead, Title VII was originally enacted to prevent race, color, origin, and religious discrimination in employment. (13) In a last minute attempt to defeat the legislation, a House Representative who opposed the bill proposed that the bill be broadened to include sex in the list of protected categories. (14) The House Judiciary Committee did not hold a hearing on the amendment to add gender discrimination to Title VII and little discussion of the addition ensued. (15) This effort to thwart the passage of Title VII was unsuccessful, and the bill passed with the inclusion of sex as a protected category. (16) As a result, the legislative history of the sex discrimination portion of Title VII and the BFOQ defense is nearly nonexistent. Even the Supreme Court has recognized this limitation, stating, "we are left with little legislative history to guide us in interpreting the Act's prohibition against discrimination based on 'sex.'" (17)
Nevertheless, the Interpretive Memorandum of Title VII, submitted by the Senate Floor Managers of the Civil Rights Bill, does provide some limited information on the BFOQ. (18) The Interpretive Memorandum refers to the BFOQ as a "limited exception" to the prohibition against discrimination and explains that employers are given a "limited right to discriminate ... where the reason for the discrimination is a bona fide occupational qualification." (19) This Memorandum further detailed some examples of BFOQs that would entail legal discrimination, including "the preference of a French restaurant for a French cook, the preference of a professional baseball team for male players, and the preference of a business which seeks the patronage of members of a particular religious group for a salesman of the religion...." (20) While this memo provides some instruction on appropriate BFOQ exceptions, it does not provide the in-depth understanding necessary to identify the appropriate circumstances in which the defense may be used.
Although the EEOC guidelines are also not extensive, they have been crucial in the courts' understanding of the defense since the statute itself offers little guidance. The EEOC guidelines echo Title VII's directive that "the [BFOQ] exception as to sex should be interpreted narrowly." (21) The guidelines further explain that employers many not refuse to hire employees based on stereotyped characterizations or customer preferences. (22) The compliance manual lists only one area in which a BFOQ is allowable: when necessary for the purpose of authenticity or genuineness. (23) Nevertheless, EEOC discussion letters explain that other motives, including the psychological needs of clients or customers, are acceptable BFOQ objectives. (24)
Although the EEOC guidelines provide guidance to courts interpreting the BFOQ provision, they are not controlling precedent. In General Electric Co. v Gilbert, the Supreme Court considered how much deference to give the EEOC's guidelines, explaining that:
[T]he rulings, interpretations and opinions of the [EEOC] under this Act, while not controlling upon the courts by reason of their authority, do constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance. (25)
The court went on to find two crucial factors in determining whether a court should defer to EEOC guidelines: (1) whether the guideline in question is a contemporaneous interpretation of Title VII, and (2) whether the guideline is consistent or inconsistent with the position that the EEOC held at an earlier date, closer to the enactment of Title VII. (26) These factors suggest that courts should defer to EEOC's BFOQ guidelines because: (1) the guidelines have been consistent, not changing since their promulgation, (27) and (2) they were promulgated very close in time to the enactment of Title VII (the same year, in fact). Thus, courts can place great weight on the EEOC's guidelines when deciding BFOQ cases.
B. Framework
A plaintiff may bring a Title VII claim by asserting a violation based on disparate treatment or disparate impact. Under a disparate treatment claim, an individual argues that he or she was treated differently as a result of his or her race, color, religion, sex, or national origin. Under this theory, proof of the employer's discriminatory motive is essential. (28) Alternatively, under a claim of disparate impact, the employment practice appears neutral on its face, but impacts a protected group more harshly. (29) Because the practice is facially neutral, no proof of discriminatory motive is required. The BFOQ defense is utilized only when an employer admits to discriminatory practices and, therefore, should only be raised as a defense to disparate treatment charges.
To establish the prima facie case for disparate treatment, a plaintiff must show that: (1) he is a member of a protected class; (2) he applied and was qualified for a job for which the employer was seeking applicants; (3) despite his qualifications, he was rejected; and (4) that, after his rejection, the position remained open and the employer continued to seek applicants from persons with complainant's qualifications. (30) Once a plaintiff establishes a prima facie case, the burden shifts to the defendant employer to articulate a legitimate, nondiscriminatory reason for the employee's rejection. (31) An employer may state a variety of legitimate, non-discriminatory reasons, provided that they are not pretext. (32) Moreover, the employer's justifications do not have to be good reasons, so long as they are non-discriminatory. (33) It is sufficient if the defendant raises a genuine issue of material fact as to whether it discriminated against the plaintiff. (34) According to the Supreme Court in Texas Department of Community Affairs v. Burdine, the employer must only "produce admissible evidence which would allow the trier of fact rationally to conclude that the employment decision had not been motivated by discriminatory animus." (35) The plaintiff retains the burden of persuasion and may succeed "either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's offered explanation is unworthy of credence." (36) The plaintiff's successfully established prima facie case, joined with sufficient evidence that the employer's proffered justification was false, permits the trier of fact to conclude that unlawful discrimination occurred. (37)
If a plaintiff is successful in making out her prima facie case, an employer then has the opportunity to raise the BFOQ as an affirmative defense. Here, the burden of proof falls upon the employer and is difficult to meet. (38) Both the Supreme Court and the EEOC guidelines explain that the BFOQ exception to sex discrimination should be interpreted narrowly; (39) a BFOQ can be established only when "sex discrimination is 'reasonably necessary' to the 'normal operations' of the 'particular' business." (40)
C. The BFOQ Multi-Part Test
The requirements for establishing a BFOQ have evolved over time into a multi-part test, guided by Supreme Court cases and the BFOQ rules established within the Age Discrimination Employment Act. (41) Courts considering a BFOQ defense analyze the claim under the "all or substantially all" test and the "essence of business" test. (42) Additionally, courts often consider whether any reasonable alternatives exist to forgo discriminatory practices. (43)
Initially, courts constructing a BFOQ standard required that an employer prove that "all or substantially all women" would be unable to fulfill the requisite job duties. For example, in Weeks v. Southern Bell Telephone & Telegraph Co., an employer excluded women from positions requiring employees to lift more than thirty pounds. (44) This practice was rejected because the employer could not show that almost all women could not lift thirty pounds. (45) The Fifth Circuit Court of Appeals explained that "to rely on the bona fide occupational qualification exception an employer has the burden of proving that he had reasonable cause to believe, that is, a factual basis for believing, that all or substantially all women would be unable to perform safely and efficiently the duties of the job involved." (46) The "all or substantially all" test often comes into dispute when employers attempt to exclude females based on physical ability, privacy concerns, or where pregnancy poses safety risks. This test presents a large hurdle for employers and is only met if it can be shown that gender is an "absolute bar to job performance or if virtually all members of one sex are unable to perform and testing for individual capabilities is not feasible." (47) This "all or substantially all" test makes up one prong of the three part test commonly employed today.
Two years after establishing the "all or substantially all" test, the Fifth Circuit Court of Appeals formulated another test, commonly called the "essence of the business" test, to determine whether a BFOQ was properly established. (48) In Diaz v. Pan American World Airways, Inc., Pan Am maintained a policy of exclusively hiring females for its flight attendant positions. (49) The essence of the business test was established with the court's finding that "[d]iscrimination based on sex is valid only when the essence of the business operation would be undermined by not hiring members of one sex exclusively." (50) Although the court acknowledged that females may be better suited to fulfill the required duties of the position, this was not enough to fulfill the essence of the business test:
The primary function of an airline is to transport passengers safely from one point to another. While a pleasant environment, enhanced by the obvious cosmetic effect that female stewardesses provide as well as ... their apparent ability to perform the non-mechanical functions of the job in a more effective manner than most men, may all be important, they are tangential to the essence of the business involved. No one has suggested that having male stewards will so seriously affect the operation of an airline as to jeopardize or even minimize its ability to provide safe transportation from one place to another. (51)
Consequently, job qualifications cannot be based on customer, coworker, or employer preference. Furthermore, an employer's decrease in profits is not adequate to support a BFOQ defense. (52) In light of these restrictions, the essence of the business test is considerably difficult to meet. An employer must prove that gender is absolutely essential to the business' primary function and that members of the opposite gender could not successfully perform the duties that constitute the employer's essence of the business.
For many years, the "all or substantially all" and the "essence of the business" tests were utilized as separate and competing BFOQ tests. However, in 1977, in Dothard v. Rawlinson, the Supreme Court gave express approval to both standards. (53) After the Supreme Court authorized the use of both analyses, courts began to employ the "all or substantially all" and the "essence of the business" concurrently. The two tests are easily employed in tandem because they focus on two different considerations. The "essence of the business" test considers whether the employee's desired trait is essential for the business to run successfully, while the "all or substantially all" test focuses on whether a class-based ban is the only feasible method of revealing those unable to perform the job.
Often, courts require a third prerequisite, mandating that defendants also show that no reasonable, less discriminatory alternative exists, especially in cases where privacy is at issue. (54) For instance, in Hardin v. Stynchcomb, the Eleventh Circuit Court of Appeals disallowed the sheriff's department's policy of rejecting female applicants for the deputy sheriff position. (55) There, the sheriff's department argued that sex was a bona fide occupational qualification for the job because the available positions were in the male section of the jail. (56) In rejecting the BFOQ defense, the court explained that the defendant had not met its burden of proving that it "could not rearrange job responsibilities in a way that would eliminate the clash between the privacy interests of the inmates and the employment opportunities of female deputy sheriffs." (57)
III. EMPLOYER USE OF THE BFOQ DEFENSE
Employers attempt to evoke the BFOQ defense in a variety of contexts. However, given that the BFOQ exception is intended to be extremely narrow, employers' efforts are typically rejected. The defense is generally only successful in three main contexts: privacy, safety, and authenticity. While employers may, at times, legally engage in discriminatory hiring practices as a result of these three concerns, almost any other motive will be refuted. Though gendered hiring regularly occurs based on stereotypes, customer preference, and the promotion of sex appeal within businesses that don't primarily sell sex, employers have been largely unsuccessful in justifying discriminatory hiring stemming from these motives. The following assessment of successful and unsuccessful uses of the defense allows an examination of the defense's legitimacy and assists in explaining whether its tolerance of discriminatory practices should remain unchanged, be expanded, or restricted.
A. Successful BFOQ Contexts
1. Privacy
Employers are often successful in offering BFOQ defenses based on legitimate privacy concerns. Although the Supreme Court has never heard a BFOQ privacy case, it has suggested that such a justification may be one of the few acceptable BFOQ motives. (58) Courts of appeal and lower courts regularly recognize this defense when based upon the privacy concerns of third parties. (59) Courts differ in their determinations of what privacy interests are legitimate, but most successful claims are premised upon concerns for bodily privacy when dealing with fully or partially unclothed patients or customers. A subset of cases based upon the needs of patients when receiving psychological or role-modeling services are often considered to fall under the privacy exception. The primary factor in privacy cases is whether the protection of the privacy interests is essential to the employer's primary business. (60)
An employer arguing a BFOQ defense based on privacy must generally establish three elements: "(1) it has a factual basis for believing that employees of a particular sex are necessary in order to protect the privacy interests of third parties involved; (2) the asserted privacy interest is entitled to protection under the law; and (3) there is no reasonable alternative to protect those privacy interests other than a sex-based policy." (61) In analyzing the third prong of the test, courts will question whether employers can rearrange job assignments to prevent privacy problems. (62) If such alterations are possible, a BFOQ defense is more likely to be denied.
Privacy defenses have been upheld in instances where employers require custodians to be the same sex as those in the facility being cleaned,...
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