Bona Fide Occupational Qualification - Essay Example

Are there still jobs than can done by a woman and not a by a man and vice versa? Should gender ever be a bona fide occupational qualification “BFOQ” or an exception to employment discrimination as the term is used in Title VII? If it is so, under what kind of circumstances? I. Introduction This paper maintains that there are still jobs that may be done by a woman and not by the man and vice versa and that gender qualifies as a bona fide occupation qualification (BFOQ) under Title VII in specific circumstances where it is necessary to protect third parties’ privacy or to protect the survival of the business. This paper also posits that as an exception to the general rule, it should be the burden of the employer to prove bfoq. Failure to prove bfoq should therefore result to validity of charge of discrimination. Title VII, 42 U.S.C. § 2000e et seq reads: "It shall be an unlawful employment practice for an employer— "(1) to fail or refuse to hire or 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; or "(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin." The Act added subsection (k) to § 701 of the Civil Rights Act of 1964 and reads in pertinent part: "The terms 'because of sex' or 'on the basis of sex' [in Title VII] include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or inability to work….” II. A.BFOQ is available where it is reasonably necessary to the normal operation of that particular business or enterprise. Existing law permits an employer to discriminate under certain circumstances. Generally, under Title VII, an employer cannot discriminate based on gender. A BFOQ therefore assumes the role of an exception. Under § 703(e)(1) of Title VII, an employer may discriminate on the basis of "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.” (42 U.S.C. § 2000e-2(e) (1)) The courts have construed a BFOQ narrowly, but the courts made exceptions, permitting an employer to require, for example, either a man or a woman for a specific kind of job. One easy example permits an employer to offer a role of a female lead in a play only to women. BFOQ comes in here, and not discrimination. On the other hand, an employer cannot require only women, or only men, for the job as a leading violinist (concertmaster) for an orchestra. Both jobs manifest clarity since the first requires exclusivity or women, while the second one does not require such. II. B. An employer, with just being concerned that woman’s fetus may not deny a woman the job of switchman with proof out of BFOQ. In the case of Weeks v. Southern Bell Tel. and Tel., 408 F.2d 228, (Fifth Circuit, 1969) complainant contested the position of a switchman where the employer denied employment for the employee, who is the complainant in this case. The employer contended that not employing a woman would protect that woman in possible damage to her fetus and that that making the woman performs the job of switchman is strenuous. (Id. at 234) The court agreed with the complainant in the charge of discriminations for not hiring a woman in the guise of protecting the fetus of the woman. (Id at. 236) It also noted the failure of the employer to prove a BFOQ. The court concluded then that there was employment discrimination based on sex. The Court said that labeling a job strenuous simply does not meet the burden of proving that the job is within the bona fide occupational qualification exception. In added that the principle of non-discrimination requires that individuals should qualify on the basis of individual capacities, not of any characteristics and generally attributable to the group. (Id. at 234) The presumption of discrimination therefore is clear, absent any proof of valid BFOQ where it is essential to the business of the employer. Neither the justification of privacy was mentioned in the case. II. C. An airline may deny a man the job of a flight attendant as a result of changing technology and on the basis of studies that woman flight attendant served needs that may not be served by a man. Having evaluated the impossibility on BFOQ for the job of switchman involving a woman applicant, the court in the case of Diaz v. Pan American World Airways, Inc, 311 F.Supp. 559 (S. D. Flo.1970) had the opportunity to evaluate of BFOQ in the job of a flight attendant. The applicant, a male, in the said, failed to become have the job of flight attendant, under which Pan American World Airways, the employer implemented a policy not to hire flight attendant for males and thereby discriminating in favor of females. Pan Am argued using many reasons for doing so including past experience and customers’ preference for female flight attendant. (Id. at 563) The EEOC found BFOQ saying that customers’ preference could not be considered BFOQ. The court did not upheld the EEOC’s position citing instead the fact that Congress has indicated that customer preference may be considered under the limited "bona fide occupational qualification" exception to the general prohibition against discrimination on grounds of sex, but that Congress did not include any such exception to its general prohibition against discrimination on grounds of race or color. (Id. at 568) The court decided that sex or gender was a valid ‘BFOQ’ for the job of a flight attendant in this particular case. (Id. at 569) The latter’s case proved that customers’ preference may be a ground to be BFOQ. The question that needs to be answered here is: “Is this the equivalent o essence of business standard?” Based on evidence presented, Pan American changed its hiring policies from previously employing men as attendants to women on the ground that females served a need that is served by their male counterparts. As in any other U. S. carriers, “some 96% of the more than 23,000 flight attendants employed in the industry in 1967 were women, and no U. S. carrier was hiring males for the position for which the plaintiff here applied.” (Id. at 564) Although it was not clearly expressed that court decided on the standard of being essential to employers’ standard of business, this paper submits that court intends to argue on that line of reasoning. II. D. For those positions in which a customer's fundamental privacy rights are violated courts refused to carry Title VII so far as to require those rights to be infringed for the sake of equality. As posited earlier, this paper maintains that BFOQ may be upheld on the ground of protecting the privacy customers as held in the case of Norwood v. Dale Maintenance, 590 F.Supp. 1410, (N.D. Ill, 984). The court decided in favor of employer’s right to discriminate on the basis of gender when necessary to protect the privacy of the clients in cleaning the comfort rooms. In said case, a Norwood’s supervisor told Norwood, a female employee, that a male was selected for the men’s washroom attendant position because Dale determined that a male was best suited for the particular job on practical grounds as contained in a letter given to Norwood’s supervisor or implementation. (Id. at 1414) With Norwood’s filing a charge of sex discrimination, employer-defendants pleaded BFOQ for the day shift washroom attendant positions given to males. Defendants defended this policy as reasonably necessary to their normal business operations and for the protection of the privacy interests of tenants and guests. (Id. at 1415). The Court upheld privacy rights to justify sex-based hiring by an employer. The court cited those occupations which require an employee to work with or around individuals whose bodies are exposed to varying degrees. (Id. at 1416). The court concluded that Plaintiff Vera Norwood's discrimination claim against defendants Dale and Standard Oil serves as an example of the point at which a line must be drawn between employment positions open equally to both sexes and positions open only to members of one sex. It said that fortunately, the vast majority of employment positions fall on the side of the line where employers cannot discriminate on the basis of sex. Furthermore it articulated: “For those positions in which a customer's fundamental privacy rights are implicated, however, courts have been reluctant to carry Title VII so far as to require those rights to be infringed for the sake of equality. The position in the instant case is one in which fundamental rights are involved. Time spent by an individual in a washroom is personal and private.” (Id. at 1423). The court also decided not to require defendants to institute an alternative which would allow opposite sex cleaning but which would also infringe on privacy rights and unreasonably disrupt the normal operation of defendants' businesses. (Id. at 1423). II. E. Employee’s superior performance may not be used as a justification if it is a pretext for sex discrimination; an unqualified woman for a position may not validly invoke sex discrimination. In the case of Fernandez vs. Wynn Oil Company, 653 F.2d 1273, (9th Circuit, 1981), the complainant, a woman employee, wanted promotion but her employer denied her the chance not because employee’s belief of being a woman but for being unqualified. In the same case, the Court informed that an employer's decision may be justified by the hired employee's superior qualifications unless the purported justification is a pretext for invidious discrimination. (Id. at 1276) It noted that the record supports the trial court's finding of superior qualifications of Matthew than that of Fernandez and that as per records Fernandez failed to show proof of pretext. (Id. at 1276) The district court found masculine gender a bona fide occupational qualification for the position in question. It based this conclusion on testimony that Wynn's South American clients would refuse to deal with a female DIO. The US Court of Appeals declared the district court in error in its factual findings and legal conclusions. It said: “Testimony in the record indicated that a female would have difficulty in conducting business in South America from a hotel room. No proof was adduced, however, that the position required work of this nature. Nor does the record provide any basis for the district court's findings that hiring Fernandez would "destroy the essence" of Wynn's business or "create serious safety and efficacy problems." There is, in short, no factual basis for linking sex with job performance. The BFOQ finding is accordingly factually erroneous.” (Id. at 1276) II. E. A fitness center could not justify hiring only single sex employees without proof that it passes the essence of business test or right to privacy test. In the cases of U.S.E.E.O.C v. Sedita, 755 F.Supp. 808, (N.D. Ill.1991). The district court decided on the negative when confronted with the issue of whether a fitness center could justify hiring only single sex. The court also found that the defendants have failed to prove that no reasonable alternatives exist to their discriminatory hiring policy. The court, equally unpersuaded by Ms. Sedita’s testimony that club members will leave Women’s Workout World if the club hires males, agreed with the EEOC, when the latter made suggestions for employer to be able to hire male employees by changing the duties of the jobs in question. (Id. 809) Despite the fact that plaintiff’s suggestions were undeveloped, the court doubted unreasonability, or that they could be rejected on their face. For failure to refute these suggestions, and to prove that they would not be feasible at Women’s Workout World, the court denied the defense of BFOQ. The court emphasized that the purpose of the defendants business operation of providing individualized fitness and exercise instruction to the clubs women members, requires said employer to prove that it cannot achieve its business purpose without engaging in single sex hiring. (Id. at 812) Its failure to prove BFOQ is fatal because of the presumption sex discrimination. II. F. “Essence of the Business” Standard The Supreme Court has repeatedly emphasized that the BFOQ defense is a narrow exception to the general prohibition of sex discrimination contained in the Title VII. Johnson Controls, 499 U.S. 187, 201, (1991) (other citations omitted) In accordance with the narrow scope of the BFOQ defense, a single sex job classification must relate to the “essence” or “central mission” of the employer’s business (Id. At 201). The “essence of the business” inquiry focuses on whether both men and women possess the skills or abilities required to perform the central tasks of the job or the central mission of the employer. (Id. at 201) Applying this focus on task-oriented skills in Johnson Controls, the Supreme Court found the employer in violation of Title VII for excluding women capable of bearing children from jobs involving exposure to lead at a battery manufacturing plant. The job of making batteries, not concern about the welfare of the next generation, constituted the “essence” of Johnson Control’s Business. (Id. At 206) the business standard requires discriminating one on the basis of gender must result to the employer having to close business. In deciding Olsen v. Marriott International, Inc., (D. Ari.1999), case quoting Diaz v. Pan Am. World Airways, Inc., 442 F.2d 385 (5th Cir.) the court said: “The “essence of business” inquiry focuses on whether both men and women possess skills and abilities required performing the central tasks of the job or the central mission of the employer.” ohnson Controls, 499 U.S. at 201 II. G. “Essence of the Business” Standard When Privacy is the Basis of the BFOQ Defense Although the inquiry into whether gender constitutes a BFOQ usually when the same focuses on key job skills or the employer’s central mission, courts also have found a BFOQ for gender in certain situations in which a customer’s or client’s bodily privacy interests might otherwise permits compromise. In the case of Olsen, 75 F.Supp.2d 1052, 1060 (D. Ari.1999), the court said that protection of client bodily privacy justifies for Marriott in support of its argument that sex is a BFOQ for the position of massage therapist at the Camelback Inn in proportion to client requests for a female therapist. Examples taken from previously decide cased include a position involving intimate personal care such as bathing and toileting, a position involving dressing and bathing elderly nursing home patients. II. H. Cases Illustrating Intrusions on Privacy The court illustrated in the case of Olsen v. Marriott, 75 F.Supp.2d 1052, (D. Ari.1999) intrusions to privacy as follows: Most privacy-based BFOQ requests occur when employees in the position at issue perform legitimate job duties requiring that they intrude upon the privacy interests of a third party by, viewing the third party completely naked. Several courts analyzing privacy-based BFOQ requests have described the interest in bodily privacy by quoting language from a decision of the Ninth Circuit: “We cannot conceive of a more basic subject of privacy than the naked body. The desire to shield one’s unclothed figure from view of strangers, and particularly strangers of the opposite sex, in impelled by elementary self-respect and personal dignity.”(Id. 1062) Janitors cannot intrude on legitimate privacy interests by cleaning workplace bathrooms wherein male employees undress, shower, and use urinals, at least when the size of the workforce preludes cleaning while the bathhouse is empty. (Norwood v. Dale Maintenance Systems, Inc., 590 F.Supp.1417) (BFOQ found when janitors could view men urinating in the washroom, in workplace where washroom was in almost continuous use due to the size of the workforce). Finally, plaintiffs created a genuine issue of material fact about whether health club employees intruded upon privacy interests of clientele by performing duties involving exposure to partial or complete nudity in showers, locker rooms, and exercise rooms, as well as touching of clients’ breasts, inner thighs, buttocks, and crouch areas while taking measurements and providing instructions on equipment. EEOC v. Sedita, 816 F. Supp. 1291, 1295 (N.D.Ill.1993). In addition the court found Sedita failing to justify BFOQ, it having the burden to prove the same. The court in the of Olsen v. Marriott, 75 F.Supp.2d 1052, (District Court, D. Arizona, 1999) concluded that being female is BFOQ to the extent that customers request female massage therapists, based neither on inability of men to fulfill core job functions nor on the notion that core job functions intrude upon privacy interests, and require assignments of clients to massage therapists of the same sex. It said that Marriott’s request if granted would result in an unprecedented and improper expansion of the BFOQ defense unfettered by any objective limitations related to job functions or privacy concerns and constrained only by customer preference, whatever its basis. It emphasized that the Courts, including the Ninth Circuit, have rejected such expansive interpretations of the BFOQ defense, limiting only to essence of business test and privacy test. Evidently, the court neutralized the argument of Marriott, denying BFOQ on the basis alone of customer preference. Its discussion in the case of Olsen, (Id. at 1060) involving Johnson Controls, Inc., 499 U.S. 201 , about the position of a switchman in telephone company, and court decided that employer could not validly discriminate a woman from employment in the guise of protecting the fetus when sex takes center stage as the as the reason for discriminating. III. Conclusion Discussed cases proved the validity of the wisdom of the proposition that BFOQ should be maintained as exception to the rule on gender discrimination where it is necessary to protect third party’ s privacy or to protect the survival of business. Making it the burden of the employer to prove BFOQ works well for the preservation of equality to opportunities for employment regardless of sex. Failure however to prove bfoq had in fact resulted to validity of charge of discrimination. Equality between different on matter of employment before the law does not mean perfect equality but just a recognition of the fact that what a woman or a man may do the law grants them equality except there discrimination is upheld where the business need to survive and where privacy rights must be respected and there is no other way of doing it without affecting the very nature of the business of the employer. As a matter of policy, the concept of BFOQ does not require abolition since no matter how one makes it, no perfectly similar situations in the world would ever exist. Dividing line between a man from a woman will always exist both from the biological point of view and even from psychological point of view. The BFOQ has basis not only in experience but also in common sense. We have seen in the analysis where an employer should be able to require an employee to be either a man or a woman and this is not “discrimination” to prefer men or women for some jobs. If you were a woman, would you allow a male janitor to have access to public comfort room anytime? Of course not. It is now resolved that BFOQ may still be allowed as an exception to the gender discrimination in instances where very existence of the business of the business is at stake. Cases cited: 1. Diaz v. Pan Am. World Airways, Inc., 311 F.Supp. 559 (S.D. Flo. 1970) 2. EEOC v. Sedita, 755 F.Supp. 808, (N.D.Ill.1991) 3. Fernandez v. Wynn Oil, 653 F.2d at 1274, (9th Cir.1981) 4. Norwood v. Dale Maintenance Systems, Inc., 590 F.Supp. 1410 (N.D.Ill.1984) 5. Olsen v. Marriott Intern, 75 F.Supp.2d 1052 (D. Ari.1999) 6. UAW v. Johnson Controls, 499 U.S. 201. 7. Weeks v. Southern Bell Telephone & Telegraph Company, 408 F.2d 228 (5th Cir. 1969) Laws cited: 1. Title VII, 42 U.S.C. §2000e-2(a) (1): 2. § 701 of the Civil Rights Act of 1964 Read More