~ Bona Fide Occupational Qualification (BFOQ) ~

1. Some Title VII Exemptions ~ Bona Fide Occupational Qualification (BFOQ) ~ (e) Businesses or enterprises with personnel qualified on basis of religion, sex, or national origin; educational institutions with personnel of particular religion (1) it shall not be an unlawful employment practice for an employer to hire and employ employees, for an employment agency to classify, or refer for employment any individual, for a labor organization to classify its membership or to classify or refer for employment any individual, or for an employer, labor organization, or joint labor-management committee controlling apprenticeship or other training or retraining programs to admit or employ any individual in any such program, 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,

2. BFOQ Tests • That all or substantially all members of the opposite group (e.g., gender) are unable to perform in the role • That the essence of the business would be undermined without protected-group based hiring decisions 3) That no reasonable alternative to the discriminatory hiring exists

3. Adapted From: PART 1604—GUIDELINES ON DISCRIMINATION BECAUSE OF SEX • § 1604.2 Sex as a bona fide occupational qualification • Sex as a BPOQ should be interpreted narrowly • Examples of situations NOTwarranting a BFOQ exemption: • The refusal to hire a woman because of her sex based on assumptions of the comparative employment characteristics of women in general (e.g., assuming that turnover rate among women is higher than among men) • The refusal to hire an individual based on stereotyped characterizations of the sexes (e.g., women are less capable of aggressive salesmanship). Individuals must be considered on the basis of individual capacities – not assumed group characteristics and not on the basis of any characteristics generally attributed to the group • The refusal to hire an individual because of the preferencesof coworkers, the employer, clients or customers • Okay as a BFOQ: For authenticity or genuineness purposes, the Commission will consider sex to be a bona fide occupational qualification (e.g., an actor, actress) or reasonable expectations of privacy (role of culture)

4. Case Example In early 2009, a male applicant filed suit against Hooters of America after he was turned down for the position of server. His claim is that Hooters is engaging in sex discrimination by only hiring females as wait staff. Many years earlier, Hooters settled a class action suit after being faced with a similar allegation. In the settlement, they agreed to pay $3.75 million and open positions in their restaurants to males. But, under the agreement, the position of servers was limited to only females. In 2010, two separate lawsuits were filed against alleging weight discrimination (Convery v. Hooters of Roseville; Smith v. Hooters of Roseville). Two past servers contend that they were fired because they were judged to be overweight and did not look good in the Hooters uniform. The uniform sizes are reportedly extra, extra small, extra small, and small. (These suits also claim that Hooters weight requirements represent per se gender discrimination). Do you think Hooters should be allowed to engage in these practices? Why or why not?

5. Hooters Case (cont.) Hooters Defense • For Hooters to be successful, they need to provide evidence that limiting servers to females is reasonably necessary for the operation of its business (a BFOQ). How easy will this be for Hooters? • Key to Hooters defense will be how it defines the nature of its business and how being female (in certain positions) is crucial for their business operations. • This suit contends that Hooters violated a Michigan civil rights law banning employment discrimination on the basis of religion, race, age, sex, height and weight. In response to the weight discrimination suit, Hooters has stated that its servers function as "entertainers," and that physically fit and attractive women are key to the organization's image.

6. Yikes!!! What is LEGALLY wrong with the message being delivered by these pictures? Legitimate to have different uniform requirements (dress codes) for men and women as long as such standards place corresponding burdens on each sex. The law in this area reflects a “separate but equal” mindset -- as acceptable, practical manifestations of social norms regarding suitable attire for men and women – BUT, Stay tuned .....

7. Dothard v. Rawlinson (1977) Describe the background of the case? • Plaintiff applied for a job as a “correctional counselor” (prison guard) • She was rejected because she failed to meet the height and weight requirements established for the position [5’2” and 120 pounds] • She filed a suit alleging that the state’s requirements violated Title VII and the • 14th amendment (Due process, equal protection across the states; permits employees to sue state and local government; often used to sue municipal agencies (police and fire departments for race and sex discrimination in hiring and promotion decisions) and for reverse discrimination suits • Sex criteria: While the suit was pending, the state adopted a sex criteria for working in “contact” positions (those requiring close proximity to inmates), many who were sex offenders within it's prisons. Females not allowed to work with male inmates in such situations

8. Alabama Prison Environment • Like most correctional facilities in the United States, Alabama’s prisons are segregatedon the basis of sex • Most of Alabama's prisoners are held at the four maximum-security male penitentiaries, 336 of the 435 correctional counselor jobs were in those institutions, a majority of them concededly in the "contact" classification • The environment in Alabama's penitentiaries is a peculiarly inhospitable one for human beings of whatever sex. Indeed, a Federal District Court has held that the conditions of confinement in the prisons of the State, characterized by "rampant violence" and a "jungle atmosphere," are constitutionally intolerable. • Prisons are arranged in dormitory fashion, understaffed, and consists of consists of substantial amount (20%) of sex offenders mixed with other inmates

9. What evidence did Rawlinson offer to to form a prima facie case? • That the facially neutral height and weight requirements disproportionately exclude women from eligibility for employment by the Alabama Board of Corrections. • The height and weight requirement excluded 41% of females and 1% of males • Defense rebuttal: • Rawlinson's failure to produce comparative statistics concerning actual applicants for correctional counselor positions in Alabama • Job relatedness, manifest relationship, business necessity SC: There is no requirement that a statistical showing of disproportionate impact must always be based on … actual applicants…. The application process itself might not adequately reflect the actual potential applicant pool, since otherwise qualified people might be discouraged from applying because of a self-recognized inability to meet the very standards challenged as being discriminatory.

10. SC Decision (cont.) SC Decision: Height and weight requirements are not job related. They are used as a proxy for strength, an unspecified amount of which is essential to effective job performance as a correctional counselor!. Should directly measure strength Sex as a BFOQ The BFOQ exception was in fact meant to be an extremely narrow exception to the general prohibition of discrimination on the basis of sex An employer could rely on the BFOQ exception only by 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." SC Decision: Sex in this instance was a BFOQ --- concern for prison safety; being female would pose a substantial security risk. Workplace safety, not worker safety, was the legal basis for excluding women from prison guard duty in all-male maximum-security prison

11. Dissent (Regarding Sex as a BFOQ) It appears that the real disqualifying factor in the Court's view is “the employee's very womanhood.” The Court refers to the large number of sex offenders in Alabama prisons, and to “the likelihood that inmates would assault a woman because she was a woman.” In short, the fundamental justification for the decision is that women as guards will generate sexual assaults. With all respect, this rationale regrettably perpetuates one of the most insidious of the old myths about women - that women, wittingly or not, are seductive sexual objects. The effect of the decision, made I am sure with the best of intentions, is to punish women because their very presence might provoke sexual assaults. It is women who are made to pay the price in lost job opportunities for the threat of depraved conduct by prison inmates. Once again, “the pedestal upon which women have been placed has . . ., upon closer inspection, been revealed as a cage. It is particularly ironic that the cage is erected here in response to feared misbehavior by imprisoned criminals

13. United Auto Workers v. Johnson Controls (1991) Background of the case? • Defendant (battery maker): Exposure to lead entails health risks, including the risk of harm to fetuses. Company warnedfertile women of the dangers of lead toxicity • Eight employees became pregnant while maintaining blood lead levels exceeding that noted by the Occupational Safety and Health Administration (OSHA) as critical for a worker planning to have a family • Company switched from a warning to an outright ban on fertile women entering high-lead jobs (except those whose infertility was medically documented) • Petitioners sued the company claiming sex discrimination

14. OSHA General Duty Clause Each employer shall furnish to each of his employees employment and a place of employment which are free from recognizedhazards that are causing or are likely to cause death or serious physical harm * Responsibility of employers to identify problems that the government does not identify

15. Decision in Johnson Controls • 7th circuit upheld this policy under both adverse impact and BFOQ theory in a divided ruling • Unanimous Supreme Court struck down the 7thcircuit ruling under BFOQ theory • (Title VII sex discrimination violation … the policy explicitly classifies on the basis of potential for pregnancy (i.e., PDA), which is explicit sex discrimination • Application only to females: The policy does not apply to male employeesdespite evidence about the debilitating effect of lead exposure on the male reproductive system • Job performance: Fertile women … manufacture of batteries as efficientlyas anyone else. … respondent's professed concerns about the welfare of the next generationdo not suffice to establish a BFOQ of female sterility.Title VII, as amended by the PDA, mandates that decisions about the welfare of future children be left to the parents … rather than to the employers who hire those parents or the courts • Fetal Protection Policies: Title VII bans sex-specific fetal-protection policies, the employer fully informs the woman of the risk, and the employer hasnot acted negligently, the basis for holding an employer liable seems remote, at best

16. BFOQ Summary • [e.g., based on national origin, religion, age, sex] • Title VII cases have focused on gender • Defense has NOT succeeded for customer preference (Diaz v. Pan American World Airways, 1971 -- airlines may not exclude male flight attendants based on passenger preference) or worker safety (e.g., Auto Workers v. Johnson Controls) • Defense has succeeded for workplace safety (e.g., Dothard v. Rawlinson), customer safety, and reasonable expectation of privacy (e.g., female janitors excluded from all-male bathhouses; Brooks v. AFC Industries, 1982) • Overall, BFOQs are difficult to defend

17. Some Exemptions (Title VII, 1964, cont.) Bona Fide Seniority Systems Sec. 703 (h): Notwithstanding any other provision of this subchapter, it shall not be an unlawful employment practice for an employer to apply different standards of compensation, or different terms, conditions, or privileges of employment pursuant to abona fide seniority … system provided that such differences are not the result of an intention to discriminate because of race, color, religion, sex, or national origin …”

18. The Bone Fide Seniority System (BFSS) Defense • Seniority are legal if they are: • Not intended to illegally discriminate, and • Legally designed, and applied equally across protected classes • But, most seniority plans qualify for the BFSS defense ― even if they cause adverse impact

19. Lorance v. AT&T (1989) [Timeframe Issue] Case Background? Prior to 1979, plant wide seniority was used and this seniority was able to be transferred to other skilled positions (e.g., tester jobs) In 1979, a new collective bargaining agreement made it mandatory that seniority in tester jobs was determined by the amount of time an employee had worked as a tester (job seniority not plant seniority; this position was mainly occupied by men) 1982: Economic downturn. Females hired into tester position between 1978-1980 were demoted due to “new” (1979) seniority policy. No demotions would have occurred if “old” system was in place

20. Plaintiff’s filed suit in 1983 claiming sex discrimination in violation of Title VII. That the purpose and effect of the new system was to protect incumbent male testers From Title VII: “ … unlawful employment practice" for an employer "(1) . . . 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." 42 U.S.C. 2000e-2(a). Seniority systems are given special treatment under Title VII. Even if they result in adverse impact, seniority systems are not unlawful unless intent is proven

21. Time Frame Issue Key is determining WHEN the discriminatory act occurred Both the District Court and CA 7 ruled that the suit was time barred; the plaintiffs had waited too long to file. CA 7: “the relevant discriminatory act that triggers the period of limitations occurs at the time an employee becomes subject to a facially neutral but discriminatory seniority system and the the employee knows, or reasonably should know, is discriminatory. Supreme Court Decision: The operation of a seniority system having a disparate impact on men and women is not unlawful unless discriminatory intentis proved. Plaintiffs has waited too long (greater than 300 days after the system was adopted) to file their claim after the alleged unlawful practice occurred (e.g., Machinists v. NLRB, 1960: Limitations period starts when the system was adopted)

22. SC Decision (cont.) “… allowing a facially neutral system to be challenged, and entitlements under it to be altered, many years after its adoption would disrupt those valid reliance interests that 703(h) was meant to protect. In the context of the present case, a female tester could defeat the settled (and worked-for) expectations of her co-workers whenever she is demoted or not promoted under the new system, be that in 1983, 1993, 2003, or beyond.”

23. ~ Supreme Court Rejecting the Continuing Violation Theory ~ [a discriminatory act occurs when each concrete effect of a decision is felt] Delaware State College v. Ricks (1980) Decision to deny tenure was the discriminatory act (triggering the limitations period) NOT one year later when the effect took place

24. Dissenting View in Lorance Justice Marshall in his dissent referring to the Court's decision that challenges to seniority systems must the made within the appropriate time frame (e.g., 300 days) --- This is so even if the employee who subsequently challenges that system could not reasonably have expected to be demoted or otherwiseconcretelyharmed by the [490 U.S. 900, 914]   new system at the time of its adoption, and, indeed, even if the employee was not working in the affected division of the company at the time of the system's adoption. This severe interpretation of 706(e) will come as a surprise to Congress, whose goals in enacting Title VII surely never included conferring absolute immunityon discriminatorily adopted seniority systems that survive their first 300 days. Because the harsh reality of today's decision, requiring employees to sue anticipatorily or forever hold their peace, is so glaringly at odds with the purposes of Title VII, and because it is compelled neither by the text of the statute nor our precedents interpreting it, I respectfully dissent.

25. Dissenting View in Lorance (cont.) Each time seniority was negatively affected by the seniority system is a continuing violationof the discrimination Under this continuing violation theory, each time a discriminatory seniority system is applied, like each time a discriminatory salary structure is applied, an independent "unlawful employment practice" under 703(a)(1) takes place, triggering the limitations period anew. See Bazemore v. Friday, (1986) ("Each week's paycheck that delivers less to a black than to a similarly situated white is a wrong actionable under Title VII") ... Viewing each application of a discriminatory system as a new violation serves the equal opportunity goals of Title VII by ensuring that victims of discrimination are not prevented from having their day in court.

26. Civil Rights Act (1991) Enforcement Provisions Sec. 2000e-5. [Section 706] Seniority System Challenges (e.g., Lorrance v. AT&T) (2) For purposes of this section, an unlawful employment practice occurs, with respect to a seniority system that has been adopted for an intentionally discriminatory purpose in violation of this title (whether or not that discriminatory purpose is apparent on the face of the seniority provision), when the seniority system is adopted, when an individual becomes subject to the seniority system, or when a person aggrieved is injured by the application of the seniority system or provision of the system.

27. U.S. Airways v. Barnett (2002) • Brief Facts: • Barnett suffered a back injury that prevented him from doing his cargo handling job (e.g., lifting) • He was transferred to a less physically demanding mailroom job • Two years later, Barnett was told that the mailroom job was being opened for bidding, and that 2 other employees with greater seniority had applied • Barnett requested that 1) he remain in the mailroom job, or 2) be returned to the cargo job with an accommodation to help with the heavy lifting, and or 3) the cargo job be restructured to include only office work Company did not respond to his requests for 5 months and Barnett was told that he no longer had the mailroom job but could apply for any jobs in the company for which he was qualified --- none existed

28. US Airways v. Barnett (cont.) Barnett sued challenging the company's seniority system (it was unilaterally applied, not the result of a collective bargaining agreement), retaliation, and the failure of US Airways to flexibly interact with him regarding his disability accommodation Supreme Court Decision – Requesting a job reassignment is generally not reasonable if it conflicts with a seniority system The seniority system will prevail in the run of cases. As we interpret the statue, to show that a requested accommodation conflicts with the rules of a seniority system is ordinarily to show that the accommodation is not reasonable. Hence such a showing will entitle an employer/defendant to summary judgment on the questionunless there is more.