The bona fide body: Title VII's last bastion of intentional sex discrimination.

• Author: McGowan, Sharon M.
• Position: Bona fide occupational qualification

Under a classic view of antidiscrimination law, employers cannot intentionally discriminate on the basis of sex. (1) This guarantee of a workplace free of discrimination arises out of both the Equal Protection Clause (2) and, even more directly, Title VII of the Civil Rights Act of 1964. (3) A closer look, however, reveals that, in some circumstances, Title VII actually permits blatant, explicit sex discrimination. For example, under Title VII, a hospital can categorically exclude men from obstetrics-gynecological ("ob-gyn") nursing positions. How can this be the case? Despite its general prohibition of employment discrimination on the basis of sex, Title VII carves out an exception for sex-specific hiring practices justified because of a so-called "bona fide occupational qualification," or "BFOQ." If an employer can demonstrate that simply being a woman or a man is an essential part of the job, the BFOQ provision immunizes that employer from liability under Title VII.

In the years immediately following the passage of Title VII, employers tried to utilize the BFOQ exception to preserve discriminatory policies that made it more difficult for women and men to take nontraditional jobs. Employers would suggest that women were not strong enough to perform physically intensive work, such as telephone repair. (4) Men, on the other hand, were characterized as not soothing or sexy enough to hold certain service jobs, such as flight attendants. (5) Courts have generally rejected these explanations as merely perpetuating the stereotypes that prevent men and women from breaking out of traditional sex-identified roles.

Courts have shown tremendous resistance, however, to the idea that we can or should throw away all "common sense" notions about the natural differences between men and women. (6) As a result, many courts continue to accept the BFOQ justification in a residual cluster of sex discrimination cases involving prison guards, medical attendants, and bathroom custodians. While seemingly unrelated, these positions share a common element in that they involve the potential or actual observation of the (naked) body. When faced with these cases, courts have validated sex-specific hiring practices out of a desire to protect privacy and prevent physical or psychic harms to third parties. In prison guard cases, where equal employment claims and privacy interests have clashed most acutely, some judges decide that job applicants' right to equal employment opportunities outweighs prisoners' diminished expectation of privacy. In other instances, courts find that sex-discriminatory employment practices are necessary components of prison policies to promote security and rehabilitation. In the hospital and janitor cases, by contrast, courts regularly accept employers' arguments that they must implement sex-specific hiring practices in order to respect the privacy interests of their clientele.

This Article argues that courts' continued willingness to recognize BFOQs in these cases stems from their reliance on problematic sex-linked stereotypes and heteronormative premises, all of which threaten to enervate the transformative promise of Title VII. The normative assumptions that courts bring to their analysis reflect their ambivalence regarding and, in some instances, outright resistance to the implementation of a regime of total sex equality. Furthermore, their touting of BFOQs as a panacea for sexual abuse and dignitary harms not only betrays the spirit of Title VII but also allows a broad range of abuses to go unaddressed.

Part I offers a limited overview of Title VII BFOQ jurisprudence, first by outlining what have come to be known as the seminal BFOQ cases and then by discussing the Supreme Court's main BFOQ decision, Dothard v. Rawlinson. (7) With this foundation in place, Part II presents the four primary justifications that lower courts have offered when accepting BFOQ defenses in prison, hospital, and bathroom cases: the threat of physical and sexual assault, the dignitary harm caused by cross-sex observation, the erosion of civilized norms of modesty, and the frustration of rehabilitative goals. This Part also identifies the normative bases underlying these arguments and assesses the accuracy and propriety of these assumptions. Part III then proposes that the BFOQ exception should be limited further, if not eliminated altogether, in order to maximize the potential of Title VII's antidiscrimination mandate. Specifically, in the non-incarcerated world, sex-based BFOQs should play no role, and individuals should be forced t o absorb the costs of their taste for discrimination. With regard to prisons, however, in the absence of other meaningful safeguards, BFOQs may in fact be the only way to prevent the sexual abuse of female prisoners by male guards.

Through this Article, I hope to demonstrate the extent to which BFOQs are fundamentally inconsistent with the mandate that all individuals be judged on the basis of their own merit, rather than on overbroad generalizations about the capabilities of their sex. In the vast majority of cases, the notion that an individual's sex, independent of any other characteristic, could render someone unfit or unqualified to perform a job cannot withstand scrutiny. Consequently, the BFOQ exception to Title VII should be drastically limited. As we become more comfortable with new norms of sex equality, simple observation by a member of the opposite sex will no longer feel inherently violative, and our understanding of what it means to be treated with dignity will evolve accordingly. As long as courts permit employers to utilize BFOQs based solely on views about sex constrained by tradition, the goal of equal employment opportunity will remain elusive.

1. TITLE VII AND TILE BONA FIDE OCCUPATIONAL QUALIFICATION (8)

   Title VII of the Civil Rights Act of 1964 is the primary federal statutory provision addressing discrimination on the basis of sex in the workplace. (9) Sex, however, was only added to the list of protected categories in a last-ditch effort to defeat the legislation. (10) As a result, commentators and judges have had little legislative history upon which to rely when offering their interpretation of the "purposes" of the sex provision of Title VII. A commentator writing at the time of the Civil Rights Act's passage noted that the House Judiciary Committee held no hearing on the amendment prior to the vote and that the House debate on the amendment covered a mere nine pages of the Congressional Record. (11)

   Unlike racial discrimination, which is prohibited without exception, (12) sex discrimination is permitted in certain limited circumstances where only one sex is considered "suitable" for a job because of its exclusive possession of some trait or characteristic that is a bona fide occupational qualification for the position. The BFOQ provision reads:

   Notwithstanding any other provision of this subchapter ... it shall not be an unlawful 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. (13)

   The Interpretive Memorandum of Title VII ("Memorandum") submitted by the Senate Floor Managers of the Civil Rights Bill referred to the BFOQ as a "limited exception" to the prohibition against discrimination, conferring upon employers a "limited right to discriminate." (14) The Memorandum offered as examples of legitimate discrimination "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 that religion..." (15) With regard to sex discrimination, the BFOQ exception was meant to accommodate those rare jobs that absolutely required employees to possess some unique sex-specific trait. (16)

   The Equal Employment Opportunity Commission ("EEOC") regulations offer a substantially similar explanation regarding the scope of the BFOQ provision. (17) The regulations call for a narrow interpretation of the BFOQ exception (18) and the rejection of purported BFOQs that are based on nothing more than stereotypical views about the capabilities of men and women. (19) They also explicitly reject customer preferences as a basis for the recognition of a BFOQ. (20) While suggesting that a sex-discriminatory practice justified in the name of "genuineness" or "authenticity" might qualify under the BFOQ provision, the regulations generally offer a more limited universe of examples for BFOQ-justified discrimination than the Memorandum. (21)

   1. Strong Women and Soothing Men--Title VII and the Debunking of Sex Stereotypes

      The courts have rebuffed most attempts by employers to justify sex discrimination under the BFOQ provision. in Weeks v. Southern Bell Telephone & Telegraph Co., the Fifth Circuit announced that, in order to utilize a BFOQ defense, an employer must demonstrate that he has a "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." (22) The court denounced employers' reliance on "class stereotypes" to deny women who were otherwise perfectly capable of performing the duties involved the opportunity to obtain desirable positions. According to the court, the BFOQ exception should be construed very narrowly in order to implement Title VII's guarantee of equality and to eliminate the paternalistic attitudes that have kept women locked in their golden cages:

      Title VII rejects just this type of romantic paternalism as unduly Victorian and instead vests individual women with the power to decide whether or not to take on unromantic tasks...