Sex Discrimination

• Author: George Rutherglen
• Pages: 61

Five topics in Title VII law largely or exclusively concern claims of sex discrimination: the exception for bona fide occupational qualifications; classifications on the basis of pregnancy; comparable pay for comparable work; sex-segregated actuarial tables; and sexual harassment.

Bona Fide Occupational Qualifications

Section 703(e)(1) allows classifications 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."[293] It does not allow classifications on the basis of race. The principal application of the bona fide occupational qualification (BFOQ) exception has been to sex-based classifications.

Both of the Supreme Court decisions on the BFOQ exception under Title VII have emphasized that it should be narrowly construed, although one held that the BFOQ exception applied to the position in dispute and the other held that it did not. In the first case, Dothard v.

Rawlinson,[294] the Court held that women could be excluded from positions as prison guards in close contact with male inmates in the Alabama prison system. The Court reasoned that female prison guards would be in danger of sexual assault, at least in the extreme conditions of the prisons in Alabama, which had been held to violate the Eighth Amendment in an unrelated case.[295] The danger of sexual assault would have threatened the general security of the prisons by undermining control over the prison population.[296] The risk posed by the hiring of female prison guards involved more than risks of sexual assault to the women themselves, who would have been able to evaluate these risks for themselves in taking the job.

In Dothard, the Court quoted, but did not explicitly endorse, two tests for applying the BFOQ exception, both formulated by the Fifth Circuit: whether "'the essence of the business operation would be undermined by not hiring members of one sex exclusively'"[297] and whether the employer "'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.'"[298] The Court endorsed only the position that the BFOQ exception "was in fact meant to be an extremely narrow exception to the general prohibition of discrimination on the basis of sex"[299] and that "it is impermissible under Title VII to refuse to hire an individual woman or man on the basis of stereotyped characterizations of the sexes."[300] Indeed, in subsequent decisions concerning employment in prisons and jails, the lower courts have distinguished Dothard when the defendant failed to submit proof of the need for guards of a single sex.[301]

In the second case, Automobile Workers v. Johnson Controls, Inc.,[302] the Supreme Court held that the BFOQ exception did not justify the exclusion of fertile women from jobs that required exposure to lead in the process of making batteries. The Court applied the same standards as in Dothard, but reached a different result because the justification offered by the employer for the sex-based exclusion concerned the safety of a fetus, not the safety of other employees or customers.[303] By contrast, in Dothard, the presence of female prison guards created a risk of disturbances that endangered other prison employees and prisoners.[304] This reasoning appears strained because it makes the result in Johnson Controls depend on the obvious, but seemingly irrelevant, fact that fetuses do not participate in the process of making batteries. The safety of the fetus, however, raises distinctive issues under the Pregnancy Discrimination Act,[305] which generally prohibits discrimination on the basis of pregnancy, as the next section of this monograph explains. Relying on both this Act and an analogy to the constitutional decisions on abortion, the Court left decisions about the safety of children entirely to their parents: "Decisions about the welfare of future children must be left to the parents who conceive, bear, support, and raise them rather than to the employers who hire those parents."[306]

These special features of the case may limit its significance as a precedent.

Indeed, apart from the fact that the BFOQ exception is "extremely narrow," its exact scope has remained uncertain. The standards quoted in Dothard and applied in Johnson Controls leave open crucial questions about the legitimate role of sex-based differences in defining the "essence of the business operation," or what constitutes "stereotyped characterizations of the sexes." For instance, several decisions have allowed classifications on the basis of sex to protect the physical privacy of others, for instance, in the job of nurse in a maternity ward or in a nursing home with mostly female patients.[307] Even so, these decisions, particularly those concerned with guards of one sex watching prisoners of another sex, have required proof that there is no other way to protect the prisoners' privacy.[308] These decisions depend on a judgment, but presumably not a stereotype, that members of one sex would violate the privacy of members of the opposite sex, even though they might be otherwise able to perform the job.

Other cases have gone beyond the literal terms of the BFOQ exception and allowed classifications on the basis of sex as conditions of employment, not as qualifications for employment. The best known of these concern claims that an employer's rules allowing women, but not men, to have long hair violate Title VII.[309] Courts have allowed such rules despite the fact that hair length is irrelevant to the performance of most jobs. Again, however, the decisions concerned with sexbased dress requirements have prohibited sexually revealing costumes when they are required only of women.[310] The principal problem in applying the BFOQ exception, and in extending it to conditions of employment, is identifying the narrow range of cases in which judgments about sex-based roles are legitimate.

One cautionary note about the BFOQ exception is necessary. The language of the exception-allowing classifications "reasonably necessary to the normal operation of that particular business or enterprise"-invites confusion with the defendant's burden of showing job relationship and business necessity under the theory of disparate impact. Although the defendant bears the burden of proof on both issues,[311] the similarity ends there. The BFOQ exception provides a justification for occupational qualifications explicitly based on sex, national origin, or religion, and only insofar as they set occupational qualifications for employment.[312] By contrast, the defendant's burden of proof under the theory of disparate impact applies to neutral employment practices.

Pregnancy

The Supreme Court originally examined discrimination on the basis of

pregnancy in constitutional cases. The Court first held that a public

employer could not impose mandatory pregnancy leaves of fixed duration, because they rested on an unconstitutional, unrebuttable presumption, namely that women in the later stages of pregnancy are

physically unable to serve as teachers.[313] But in Geduldig v. Aiello,[314]

the Court held that classifications on the basis of pregnancy simply

were not classifications on the basis of sex. It reasoned that the exclusion of pregnancy from a state disability program was not an exclusion

based on sex because it did not distinguish women from men, but only

pregnant persons from nonpregnant persons.[315] In two subsequent

cases, the Court applied this reasoning to Title VII, holding that employers could exclude pregnancy from disability and sick leave

plans.[316]

In response to these decisions, Congress enacted the Pregnancy

Discrimination Act of 1978,[317] which overruled the Court's pregnancy

decisions under Title VII. It did so by rejecting both the reasoning and

the holdings of these decisions. It rejected the reasoning by defining

"because of sex" or "on the basis of sex" to include "because of or on

the basis of pregnancy, childbirth, or related medical conditions."[318] It

rejected the holdings by generally requiring that pregnant women be

"treated the same for all employment-related purposes" as others

"similar in their ability or inability to work" and by specifically applying this requirement to "receipt of benefits under fringe benefit

programs."[319]

Several questions about discrimination on the basis of pregnancy

were left unresolved by the Pregnancy Discrimination Act (PDA).

First, does Geduldig have any remaining precedential effect in constitutional law? This question is theoretically interesting but practically

of little consequence, since most classifications on the basis of pregnancy by public employers are prohibited by the PDA.[320]

Second, are classifications on the basis of pregnancy subject to the

BFOQ exception of section 703(e)? Federal courts have answered this

question in the affirmative, on the ground that the primary effect of

the PDA was to make classifications on the basis of pregnancy

equivalent to classifications on the basis of sex.[321] The scope of the

BFOQ exception as applied to pregnancy remains difficult to determine, as Automobile Workers v. Johnson Controls, Inc.[322] illustrates. As

the Court reasoned in that case, any exclusion of women from jobs

based on the fact that they are or might become pregnant must fit

within the narrow confines of the BFOQ exception and...