Discrimination on the Basis of Sex 24

Discrimination on the Basis of Sex 24

Imagine that you have earned a PhD in business finance and were hired to work by one of the country’s largest government contractors. Everyone considers you an excellent employee, and your responsibilities have increased over the years. Yet, even as your responsibilities increased, you notice that you are consistently excluded from essential meetings and social events such as golf tournaments. Your male colleagues make jokes about your looks and sexual proclivities. With a company policy that mandates you either make partner or leave, you suddenly find yourself without a job. Such were the allegations of a former female partner at Booz Allen Hamilton, Inc., who filed a multimillion-dollar gender discrimination lawsuit against the consulting firm, accusing officials of actively denying women the chance to move up to top leadership positions. She was the second woman in two years to claim that the company had a “glass ceiling” that kept females below top-level jobs. (See “Allen Hit With Second Gender Discrimination Lawsuit” on the blog of LegalTimes, http://legaltimes.typepad.com/blt/2011/08/booz-allen-hit-with-second-gender- discrimination-lawsuit.html.)

Or consider the case against Big Four accounting firm KPMG, where women comprise about half of all employees but only 18% of partners. According to the website of the attorneys representing the female plaintiffs:

Despite being touted by the Company as a role model for other working mothers, Ms. Kassman hit a glass ceiling after having children. KPMG abruptly slashed her base sal- ary by $20,000 while she was on maternity leave, claiming she did not need the money because she “ha[d] a nice engagement ring.” After languishing in a Senior Manager posi- tion for a decade, Ms. Kassman was finally “put up” for promotion, only to be removed from the list of candidates based on unfounded, gender-biased comments from her male colleagues. (Kassman, et al. v. KPMG LLP.)

These cases, which are both still in active litigation, represent the thousands of sexual discrimination complaints filed in the United States each year. Consider that for all of the discrimination lawsuits filed, many thousands are settled out of court or through mediation (for a discussion of mediation for settling legal disputes, see Chapter 3). The EEOC reported in 2010 that it had received 29,029 charges of sexual discrimination (Higuera & Ryerson, 2011). It is an unfortunate fact that discrimi- nation on the basis of gender continues to be a problem confronting businesses, and women, on a daily basis. From the employer’s point of view, the costs to businesses of engaging in discriminatory conduct are staggering, and lawsuits can involve hundreds of millions of dollars. In the recently decided Velez v. Novartis, the jury awarded a verdict of more than $253 million, the largest jury award in the United States in a gender discrimination case. That kind of judgment against a com- pany could bankrupt it.

Students today seem surprised to learn that in the 1960s, discrimination against women in the work- force was widespread. For example, if you opened a newspaper and looked for a job, you would find one want ad column of jobs strictly relegated to men and another for women. Similar to the idea of “separate but equal,” the want ad columns separated the sexes—but the separation was not

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anything close to equal. The pay scales for men and women were radically different, “with women earning on average between 59–64 cents for every dollar their male counterparts earned in the same job” (Brunner, 2007). Women became increasingly angry and politi- cally active about the disparity in rights and pay throughout the 1960s and continuing into the 1980s, demanding equality in the workplace and in all aspects of their lives. The Equal Pay Act was enacted in 1963 (29 USC § 206) to lessen this disparity, but despite the law’s protection, today, women still only earn approximately 80 cents for every dollar that men earn for exactly the same job.

As a manager, your awareness of discrimination from all vantage points—legal, ethical, and moral—will produce a more effective workforce as well as ward off any lawsuits that may result. This chapter aims to make you more aware of the problem and cautious about behaviors and policies that could result in litigation.

24.1 Title VII and Sex Discrimination

As we learned in the previous chapter, Title VII is the major federal statute prohibit-ing discrimination. With regard to a person’s sex, Section 703 of Title VII states: (a) It shall be an unlawful employment practice for an employer—

(1) to fail or refuse to hire or to discharge any individual, or otherwise to dis- criminate against any individual with respect to his compensation, terms, con- ditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin. . . .

Note that Title VII covers any situation related to terms or conditions of employment. These cover wages, hiring, promotion, termination, and working conditions that give preference to men over women (or women over men, for that matter) for no legitimate business reason. In short, to satisfy the requirements of Title VII, most business decisions must make gender irrelevant.

Anatomy of a Sex Discrimination Claim

Claimants who believe they were discriminated against on the basis of sex must seek a resolution through either their state discrimination agencies or the EEOC before they can file a lawsuit in court. If they choose the EEOC route, that agency has a work arrange- ment (called a work-sharing arrangement) with all of the states, so filing with the EEOC automatically files the lawsuit in the plaintiff’s state. Thus, the process preserves any rights that the plaintiff might have under state law that are not available through the federal government.

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This arrangement has many advantages, not the least of which is preserving the plaintiff’s rights to a state claim should the federal one fail. As noted throughout this unit, protec- tions at the state level are much more inclusive than Title VII’s, and a claimant might be able to prevail in the state proceeding on a “right” not given under Title VII.

A claimant may wonder whether a lawsuit is worth pursuing. The EEOC has an Online Assessment System to evaluate a claim that goes through a series of questions to deter- mine whether bringing a claim is warranted. The website is located at https://egov .eeoc.gov/eas/. There are strict time limits for filing a federal discrimination claim, and cases are usually referred to mediation for a resolution. For those cases that are never resolved at the agency level, claimants can request a Notice of Right to Sue from the EEOC, which then allows them to pursue the matter in court. This may be granted after 180 days, or six months.

Disparate Treatment Lawsuits

In sex discrimination cases, if an employer intentionally discriminates against females, it is called disparate treatment. When a disparate treatment case proceeds to court, then, as in a race discrimination claim, the same “burden of proof shifting” discussed in Chapter 23 applies for proving the discrimination. (See Figure 23.1, Steps in a Race Discrimination Lawsuit.) Recall that the plaintiff has the burden of establishing a prima facie case by a pre- ponderance of the evidence. To do so, the plaintiff must show the following:

1. Membership in a protected group; 2. Qualification for the job in question; 3. An adverse employment action; and 4. Circumstances that support an inference of discrimination (Swierkiewicz v. Sorema

N.A., 534 U.S. 506, 510 (2002)).

If the plaintiff can sustain this burden of proof, then the defendant must rebut the pre- sumption of discrimination by producing evidence that the plaintiff was rejected (or someone else was preferred) for a legitimate, nondiscriminatory reason. If the defendant succeeds in convincing the court that it had a legitimate nondiscriminatory reason, then the burden shifts back to the plaintiff to show that the defendants’ reasoning was pretex- tual, or untrue.

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Cases to Consider: Price Waterhouse v. Hopkins

Price Waterhouse v. Hopkins, 490 U.S. 228

Consider the 1989 case Price Waterhouse v. Hopkins (490 U.S. 228), in which Ann Hopkins was denied partnership in the accounting firm of Price Waterhouse. In the year she was proposed for partner, of the 88 candidates considered, she was the only woman. Despite the fact that she had a stellar record at the firm, she was denied partnership because she was “overly aggressive, unduly harsh, difficult to work with and impatient with staff.” According to the case testimony, “One partner described her as macho; another suggested that she overcompensated for being a woman; a third advised her to take a course at charm school.” In yet another conversation with a partner, she was advised to “walk more femininely, talk more femininely, dress more femininely, wear make-up[,] have her hair styled and wear jewelry.” [Id., 235]

While the accounting firm did little to deny these accusations, from its point of view, Ann Hopkins simply did not fit into the “culture of the firm.” (For an in-depth discussion of creating a positive cor- porate culture, see Chapter 4, Business Ethics and Conflict Management.) Can the business’s point of view be taken into account as a legitimate business reason and therefore serve as a defense to the discrimination? The following are excerpts from the court opinion:

The central point is this: while an employer may not take gender into account in making employment decisions . . . it is free to decide against a woman for other reasons. We think these principles require that, once a plaintiff in a Title VII case shows that gender played a motivating part in an employment decision, the defendant may avoid a finding of liability only by proving that it would have made the same decision even if it had not allowed gender to play such a role.

***

Where an evaluation is based on a subjective assessment of a person’s strengths and weaknesses it is simply not true that each evaluator will focus on or even mention the same weaknesses. . . . We sit not to determine whether Ms. Hopkins is nice, but to decide whether the partners reacted negatively to her personality because she is a woman.

We hold that when a plaintiff in a Title VII case proves that her gender played a motivat- ing part in an employment decision, the defendant may avoid a finding of liability only by proving by a preponderance of the evidence that it would have made the same decision even if it had not taken the plaintiff’s gender into account.

Read the full text of the case here: http://www.law.cornell.edu/supct/html/historics/USSC_CR_ 0490_0228_ZS.html.

Questions to Consider

1. What steps could this business have taken to avoid this lawsuit? 2. How could the business have analyzed the merits of Ms. Hopkins’s promotion in a nonsexual

(stereotyping) way?

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Disparate Impact Lawsuits

Unlike a disparate treatment lawsuit in sex or race discrimination cases, a disparate impact lawsuit depends on statistics to prove that discrimination is taking place. The object of the lawsuit is to demonstrate that the result of the employer’s actions has an adverse impact on a protected class, even if the discrimination was unintentional. (See Chapter 22 for a discussion of the four-fifths rule.)

In Dothard v. Rowlinson, 433 U.S. 321 (1977), a female corrections officer in Alabama brought an action under Title VII alleging sex discrimination. She was denied employment because of height and weight restrictions. After her application was rejected, she brought this class suit under Title VII of the Civil Rights Act of 1964, alleging that the Alabama prison sys- tem’s use of height and weight requirements was discriminatory against women because it excluded most eligible women from being considered for employment, and thus had a disparate impact. The following are excerpts from the case.

Cases to Consider: Dothard v. Rowlinson

Dothard v. Rowlinson, 433 U.S. 321 (1977)

The gist of the claim that the statutory height and weight requirements discriminate against women does not involve an assertion of purposeful discriminatory motive. It is asserted, rather, that these facially neutral qualification standards work in fact disproportionately to exclude women from eligi- bility for employment by the Alabama Board of Corrections. We dealt in Griggs v. Duke Power Co., and Albemarle Paper Co. v. Moody with similar allegations that facially neutral employment standards disproportionately excluded Negroes from employment and those cases guide our approach here.

Those cases make clear that to establish a prima facie case of discrimination, a plaintiff need only show that the facially neutral standards in question select applicants for hire in a significantly dis- criminatory pattern. Once it is thus shown that the employment standards are discriminatory in effect, the employer must meet “the burden of showing that any given requirement (has) . . . a manifest relationship to the employment in question.” If the employer proves that the challenged requirements are job related, the plaintiff may then show that other selection devices without a similar discriminatory effect would also “serve the employer’s legitimate interest in ‘efficient and trustworthy workmanship.’”

Although women 14 years of age or older compose 52.75% of the Alabama population and 36.89% of its total labor force, they hold only 12.9% of its correctional counselor positions. In considering the effect of the minimum height and weight standards on this disparity in rate of hiring between the sexes, the District Court found that the requirement would operate to exclude 33.29% of the women in the United States between the ages of 18–79, while excluding only 1.28% of men between the same ages. The 120-pound weight restriction would exclude 22.29% of the women and 2.35% of the men in this age group. When the height and weight restrictions are combined, Alabama’s statutory standards would exclude 41.13% of the female population while excluding less than 1% of the male population. Accordingly, the District Court found that Rawlinson had made out a prima facie case of unlawful sex discrimination. (continued)

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Cases to Consider: Dothard v. Rowlinson (continued)

***

Because 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. Thus, even though meeting the statutory height and weight require- ments, women applicants could under Regulation 204 compete equally with men for only about 25% of the correctional counselor jobs available in the Alabama prison system.

The District Court found that the minimum statutory height and weight requirements that appli- cants for employment as correctional counselors must meet constitute the sort of arbitrary barrier to equal employment opportunity that Title VII forbids. . . .

***

We turn, therefore, to the appellants’ argument that they have rebutted the prima facie case of discrimination by showing that the height and weight requirements are job related. These require- ments, they say, have a relationship to strength, a sufficient but unspecified amount of which is essential to effective job performance as a correctional counselor. . . .

***

The essence of a correctional counselor’s job is to maintain prison security. A woman’s relative abil- ity to maintain order in a male, maximum-security, unclassified penitentiary of the type Alabama now runs could be directly reduced by her womanhood. There is a basis in fact for expecting that sex offenders who have criminally assaulted women in the past would be moved to do so again if access to women were established within the prison. There would also be a real risk that other inmates, deprived of a normal heterosexual environment, would assault women guards because they were women. In a prison system where violence is the order of the day, where inmate access to guards is facilitated by dormitory living arrangements, where every institution is understaffed, and where a substantial portion of the inmate population is composed of sex offenders mixed at random with other prisoners, there are few visible deterrents to inmate assaults on women custodians.

There was substantial testimony from experts on both sides of this litigation that the use of women as guards in “contact” positions under the existing conditions in Alabama maximum-security male penitentiaries would pose a substantial security problem, directly linked to the sex of the prison guard. On the basis of that evidence, we conclude that the District Court was in error in ruling that being male is not a bona fide occupational qualification [BFOQ] for the job of correctional counselor in a “contact” position in an Alabama male maximum-security penitentiary.

Read the full text of the case here: http://supreme.justia.com/cases/federal/us/433/321/case.html.

Questions to Consider

1. Did the Court find that Ms. Rawlinson had been discriminated against? Why or why not? 2. Did the Court find that she won the case? Why or why not? 3. What argument did Alabama use to justify discrimination against females? Do you agree or

disagree with this argument?

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Also consider the more recent adverse impact case, Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), in which 1.5 million women joined a class action alleging that Wal-Mart sys- tematically discriminated by failing to promote them to managerial positions. The women argued that in Wal-Mart stores across America, local store managers were given too much discretion in terms of evaluating employees and as a result could in effect “hide their discrimination” by using subjective standards, thus eliminating females from contention.

Cases to Consider: Wal-Mart Stores, Inc. v. Dukes

Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011)

The named plaintiffs in this lawsuit, representing the 1.5 million members of the certified class, are three current or former Wal-Mart employees who allege that the company discriminated against them on the basis of their sex by denying them equal pay or promotions, in violation of Title VII of the Civil Rights Act of 1964.

Betty Dukes began working at a Pittsburgh, California, Wal-Mart in 1994. She started as a cashier, but later sought and received a promotion to customer service manager. . . .

Christine Kwapnoski has worked at Sam’s Club stores in Missouri and California for most of her adult life. She has held a number of positions, including a supervisory position. She claims that a male manager yelled at her frequently and screamed at female employees, but not at men. The manager in question “told her to ‘doll up,’ to wear some makeup, and to dress a little better.” The final named plaintiff, Edith Arana, worked at a Wal-Mart store in Duarte, California, from 1995 to 2001. In 2000, she approached the store man- ager on more than one occasion about management training, but was brushed off. Arana concluded she was being denied opportunity for advancement because of her sex. . . .

***

These plaintiffs, respondents here, do not allege that Wal-Mart has any express cor- porate policy against the advancement of women. Rather, they claim that their local managers’ discretion over pay and promotions is exercised disproportionately in favor of men, leading to an unlawful disparate impact on female employees.

***

Wal-Mart’s announced policy forbids sex discrimination, and as the District Court recog- nized[,] the company imposes penalties for denials of equal employment opportunity.

[The court next considered whether the fact that supervisors had the discretion to pro- mote females resulted in an inherently discriminatory system at Wal-Mart.]

***

To be sure, we have recognized that, “in appropriate cases,” giving discretion to lower- level supervisors can be the basis of Title VII liability under a disparate-impact theory— since “an employer’s undisciplined system of subjective decision making [can have] precisely the same effects as a system pervaded by impermissible intentional discrimina- tion.” But the recognition that this type of Title VII claim “can” exist does not lead to the conclusion that every employee in a company using a system of discretion has such a claim in common. To the contrary, left to their own devices[,] most managers in (continued)

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Cases to Consider: Wal-Mart Stores, Inc. v. Dukes (continued) any corporation—and surely most managers in a corporation that forbids sex discrimination—would select sex-neutral, performance-based criteria for hiring and pro- motion that produce no actionable disparity at all. Others may choose to reward vari- ous attributes that produce disparate impact—such as scores on general aptitude tests or educational achievements. And still other managers may be guilty of intentional dis- crimination that produces a sex-based disparity. In such a company, demonstrating the invalidity of one manager’s use of discretion will do nothing to demonstrate the invalidity of another’s. A party seeking to certify a nationwide class will be unable to show that all the employees’ Title VII claims will in fact depend on the answers to common questions.

Respondents have not identified a common mode of exercising discretion that pervades the entire company—aside from their reliance on Dr. Bielby’s social frameworks analysis that we have rejected. In a company of Wal-Mart’s size and geographical scope, it is quite unbelievable that all managers would exercise their discretion in a common way without some common direction.

The court then concluded that 1.5 million females could not all have the same experiences in the Wal-Mart system with so many different managers, and therefore could not be certified as a “class” to bring the lawsuit.

Read the full text of the case here: http://www.law.cornell.edu/supct/html/10-277.ZS.html.

Questions to Consider

1. Did the court find that Wal-Mart discriminated against women? 2. What was the problem with 1.5 million women all alleging sex discrimination against Wal-Mart? 3. What protected Wal-Mart from losing this lawsuit?

24.2 Bona Fide Occupational Qualifications in Sex Discrimination

Section 703 of Title VII exempts bona fide occupational qualifications (BFOQs) from the definition of discrimination. Title VII recognizes that there are times in which sex discrimination is “reasonably necessary to the proper operation of the business” (42 U.S.C. § 2000e–2(f)). For example, it is not a violation of Title VII to hire males to model male clothing in a catalogue and to limit hiring to males for such a purpose. Consider, for example, a business that needs to create a clothing catalogue and plans a photo shoot. The company places an advertisement on the Internet seeking “handsome male models.” Is this discrimination? Yes, but is it actionable? No. It is necessary for this particular business enterprise to exclude women in order to maintain the normal operation of its business. Other examples might include hiring the same-sex person to work in a men’s or women’s locker room as an attendant or hiring a male or female residence hall advisor in a college dormitory that is single-sex.

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Safety

We already considered the case of Dothard v. Rawlinson. Note that this case, in addition to addressing sex discrimination, also has a strong BFOQ component. Recall that the Alabama prison system argued successfully that the dangers were too great for a female prison guard to be in physical contact with prisoners. This has been interpreted in later cases to mean that the danger to the prisoners was too great, as her inability to handle problems could result in a physical altercation. In other words, the court justified the discrimination on the basis of sex because they were protecting the prisoners from her inability to control them.

Cases to Consider: International Union, United Automobile, Aerospace & Agricul- tural Implement Workers of America, UAW, et al. v. Johnson Controls, Inc.

International Union, United Automobile, Aerospace & Agricultural Implement Workers of America, UAW, et al. v. Johnson Controls, Inc., 499 U.S. 187 (1991)

In another landmark sex discrimination case that went to the U.S. Supreme Court, women were excluded from working in or near the manufacture of batteries that contain lead by the company Johnson Controls, which considered such proximity too dangerous to the fetus of reproductive-aged females. The Court held that the policy was “facially discriminatory because it requires only a female employee to produce proof that she is not capable of reproducing” but then considered whether the protection of the fetus was a BFOQ. In concluding that this policy was not a valid BFOQ, the Court stated as follows:

Our case law, therefore, makes clear that the safety exception is limited to instances in which sex or pregnancy actually interferes with the employee’s ability to perform the job. This approach is consistent with the language of the BFOQ provision itself, for it suggests that permissible distinctions based on sex must relate to ability to perform the duties of the job.

In holding that Johnson Controls could not use its concern about a woman’s fetus to deny women the right to work in the battery manufacturing part of the plant, the Court stated:

Our holding today that Title VII, as so amended, forbids sex-specific fetal-protection policies is neither remarkable nor unprecedented. Concern for a woman’s existing or potential offspring historically has been the excuse for denying women equal employ- ment opportunities. Congress in the PDA [Pregnancy Discrimination Act of 1978] pro- hibited discrimination on the basis of a woman’s ability to become pregnant. We do no more than hold that the PDA means what it says. It is no more appropriate for the courts than it is for individual employers to decide whether a woman’s reproductive role is more important to herself and her family than her economic role. Congress has left this choice to the woman as hers to make.

Read the full text of the case here: http://www.law.cornell.edu/supct/html/89-1215.ZS.html.

Questions to Consider

1. How did the court define the “safety exception” to the BFOQ? 2. Why did the court say that its holding was “neither remarkable nor unprecedented”? 3. Do you agree with the court’s decision? Why or why not?

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Similarly, some courts have approved airlines’ layoffs of pregnant flight attendants (at dif- ferent points during the first five months of pregnancy) on the grounds that the employ- er’s policy was necessary to ensure the safety of passengers.

Beginning with Dothard, and continuing through Johnson Controls, notice that the courts justify the use of the safety BFOQ exception when safety is a concern; that is, they allow discrimination on the basis of sex if they believe being female makes the job unsafe for others. In Dothard, the opinion indicates (and later cases confirmed) that the prison system was watching out for the inmates’ safety, and in the flight attendants’ case, the airline was concerned for the passengers.

Privacy

Another type of exception is when a privacy BFOQ is involved. In these cases, the court allows dis- crimination to protect a third par- ty’s privacy concerns. For example, in Jennings v. New York State Office of Mental Health (786 F. Supp. 376 (S.D.N.Y. 1992), aff’d 977 F.2d 731 (2d Cir. 1992)) (http://law.justia.com/ cases/federal/appellate-courts/ F2/977/731/305142/), a hospital had a policy that required at least one treatment assistant assigned to the ward of a state security hospi- tal to be of the same sex as patients on that ward. This was upheld as a valid BFOQ because treatment assistants dressed and undressed patients. In White v. Department of Corrections of the State of New York (814 F. Supp. 2d 374 (S.D.N.Y 2011)), a female correc- tions officer attempted to apply for a position at a prison. The Department of Corrections argued that there were already too many female officers at that particular prison and that more males were needed because only the male guards could do “pat-downs,” strip searches, and urine tests. However, the court rejected that privacy argument because there were alternative ways at the prison to protect the inmates’ privacy concerns (Id. at 380–381).

Wilson v. Southwest Airlines Co. addressed the issue of sex appeal as a bona fide occupational qualification.

Associated Press

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Cases to Consider: Wilson v. Southwest Airlines Co.

Wilson v. Southwest Airlines Co., 517 F. Supp. 292 (Tex. 1981)

Can sex appeal be a BFOQ? Southwest Airlines made that argument in the now famous case Wil- son v. Southwest Airlines Co. (517 F. Supp. 292 (Tex. 1981)). The plaintiffs were a group of over 100 males who brought a lawsuit against Southwest Airlines alleging sex discrimination because the air- line refused to hire males in violation of Title VII. Southwest argued that its refusal to hire males was based on a BFOQ: It may discriminate against males because its attractive female flight attendants and ticket agents personify the airline’s sexy image and fulfill its public promise to take passengers skyward with “love.” Southwest claimed that maintenance of its females-only hiring policy was cru- cial to the airline’s continued financial success.

The court opined as follows:

Since it has been admitted that Southwest discriminates on the basis of sex, the only issue to decide is whether Southwest has proved that being female is a BFOQ reason- ably necessary to the normal operation of its particular business. As the application of §703(e) depends, in large part, upon an analysis of the employer’s “particular” business, it is necessary to set forth the factual background of this controversy as a predicate to consideration of Southwest’s BFOQ defense. The facts are undisputed.

***

As an integral part of its youthful, feminine image, Southwest has employed only females in the high customer contact positions of ticket agent and flight attendant. From the start, Southwest’s attractive personnel, dressed in high boots and hot-pants, generate public interest and “free ink.” Their sex appeal has been used to attract male customers to the airline. Southwest’s flight attendants, and to a lesser degree its ticket agents, have been featured in newspaper, magazine, billboard and television advertisements during the past ten years. Some attendants assist in promotional events for other businesses and civic organizations. Southwest flight attendants and ticket agents are featured in the company’s in-flight magazine and have received notice in numerous other national and international publications. The airline also encourages its attendants to entertain the passengers and maintain an atmosphere of informality and “fun” during flights. According to Southwest, its female flight attendants have come to “personify” Southwest’s public image.

***

Southwest employs ticket agents whose primary job duties are to ticket passengers and check baggage, and flight attendants, whose primary duties are to assist passengers dur- ing boarding and deboarding, to instruct passengers in the location and use of aircraft safety equipment, and to serve passengers cocktails and snacks during the airline’s short commuter flights. Mechanical, non–sex-linked duties dominate both these occupations. Indeed, on Southwest’s short-haul commuter flights there is time for little else. That Southwest’s female personnel may perform their mechanical duties “with love” does not change the result. “Love” is the manner of job performance, not the job performed.

There is no competent proof that Southwest’s popularity derives directly from its females-only policy to the exclusion of other factors like dissatisfaction with rival airlines and Southwest’s use of convenient Love and Hobby Fields. Nor is there competent proof

(continued)

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Cases to Consider: Wilson v. Southwest Airlines Co. (continued) that the customer preference for females is so strong that Defendant’s male passengers would cease doing business with Southwest. In short, Southwest has failed in its proof to satisfy Diaz’s business necessity requirement, without which customer preference may not give rise to a BFOQ for sex.

Southwest contends, nevertheless, that its females-only policy is reasonably necessary to the continued success of its “love” marketing campaign. . . . As a matter of law, this argument fails to support a BFOQ for [an employee’s] sex. The court in Diaz emphasized that its test was one of business necessity, not business convenience.

It is also relevant that Southwest’s female image was adopted at its discretion, to pro- mote a business unrelated to sex.

The few cases on point support the conclusion that [one’s] sex does not become a BFOQ merely because an employer chooses to exploit female sexuality as a marketing tool, or to better insure profitability. In Guardian Capital Corp. v. New York State Division of Human Rights, for example, the court prohibited an employer from firing male waiters to hire sexually attractive waitresses in an attempt to change the appeal of the business and boost sales. Similarly, in University Parking, Inv. v. Hotel and Restaurant Employees & Bartenders’ Int’l, the arbitrator denied an employer’s right to replace three waitresses with waiters in order to “upgrade” his business and respond to customer desires for “classier” French service. Merely because Southwest’s female image was established in “good faith” and has become its trademark does not distinguish Defendant’s conduct from the discriminatory business decisions disapproved of in these cases.

Recognition of a sex BFOQ for Southwest’s public contact personnel based on the air- line’s “love” campaign opens the door for other employers freely to discriminate by tacking on sex or sex appeal as a qualification for any public contact position where cus- tomers preferred employees of a particular sex. In order not to undermine Congress’s purpose to prevent employers from “refusing to hire an individual based on stereotyped characterizations of the sexes,” a BFOQ for sex must be denied where sex is merely use- ful for attracting customers of the opposite sex, but where hiring both sexes will not alter or undermine the essential function of the employer’s business.

Read the full text of the case here: http://www.uiowa.edu/~prslaw/courses/gender/cases/south west.pdf.

Questions to Consider

1. Given the information above, what steps can a manager take to ensure compliance with Title VII and its BFOQ exemptions?

2. How does this case reinforce the lesson of establishing hiring policies that are neutral on their face and in which no distinction is made between males and females?

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24.3 Other Legislation Related to Discrimination Based on Sex

In spite of passage of the Civil Rights Act in 1964 and the application of Title VII to prevent discrimination based on a person’s sex, issues related to sex discrimination remained. Additional legislation was passed to strengthen protection against such discrimination.

Pregnancy Discrimination Act of 1978

A number of subsequent court decisions made it clear that questions still existed about how to apply the law to pregnancy (Geduldig v. Aiello and General Electric v. Gilbert) or potential childbearing (UAW, et al. v. Johnson Controls, Inc.). Therefore, Congress passed further legislation amending the act to specifically include pregnancy protection. Accord- ing to the EEOC:

If a woman is temporarily unable to perform her job due to a medical condi- tion related to pregnancy or childbirth, the employer or other covered entity must treat her in the same way as it treats any other temporarily disabled employee. For example, the employer may have to provide light duty, alterna- tive assignments, disability leave, or unpaid leave to pregnant employees if it does so for other temporarily disabled employees (http://www.eeoc.gov/laws/ types/pregnancy.cfm).

Women alleging discrimination under the PDA have to prove a systemized practice of decreasing the pay, responsibility, or other terms and conditions of the employment of pregnant employees and mothers because they became pregnant or took maternity leave. The courts seemingly prefer the use of statistics in such a showing. For example, in EEOC v. Bloomberg L.P., 751 F. Supp.2d 628 (S.D.N.Y. 2010), the EEOC provided testimony from women who claimed they had been discriminated against at Bloomberg for taking a pregnancy leave. However, Bloomberg was able to respond with statistics that showed that Bloomberg increased compensation for women returning from maternity leave more than for those who took similarly lengthy leaves and did not reduce the responsibilities of women returning from maternity leave any more than of those who took similarly lengthy leaves. From this case, one can conclude that it pays to keep thorough records on such matters.

Family and Medical Leave Act of 1993

Another move toward gender neutrality in the workplace was the Family and Medical Leave Act (FMLA) of 1993. Although it is not targeted only at women, the need to take leave from employment to take care of family disproportionately affects women.

Administered by the Department of Labor, FMLA is federal legislation that allows employ- ees to take off 12 weeks from work, keep their insurance benefits, and return to their job (or an equivalent position) when the 12-week period is over. The law applies only to busi- nesses that employ 50 or more workers (although several states have imposed lower num- bers), and the employee must give the employer a 30-day notice for the leave, if feasible. An employee who works for a covered employer is eligible for leave if he or she worked

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for the employer for at least 12 months, and for at least 1,250 hours over the 12 months immediately preceding the need for leave.

The law categorizes what type of circumstances it applies to:

• The birth, adoption, or placement of a child; • Care of a spouse, minor, or incompetent child or parent who has a “serious

health issue”; or • To handle the employee’s own serious health condition.

The Department of Labor describes the law as “very technical, unwieldy, and . . . difficult to understand, even for experienced practitioners.” As a result, the department hosted a webinar to walk through the basic provisions of the act and to answer questions. That webinar can be viewed at http://www.dol.gov/whd/fmla/employeeguide-webinar.htm.

Key Terms

adverse impact Employment practices that appear facially neutral but in applica- tion are discriminatory.

certified class A group of plaintiffs that have a common cause of action against the defendant(s).

class action A lawsuit involving a large group of plaintiffs who have a common cause of action against the defendant.

disparate impact The result of the employer’s discriminatory actions (even if unintended) that have an adverse impact on a protected class. The EEOC uses statis- tics to determine whether disparate impact is occurring (the four-fifths rule).

disparate treatment Intentional employ- ment discrimination against females or another protected class.

Family and Medical Leave Act (FMLA) of 1993 Federal legislation that allows employees to take off 12 weeks unpaid leave from work, keep their insurance ben- efits, and have their job to return to when the 12-week period is over.

Notice of Right to Sue For discrimination cases that are never resolved at the agency level, the EEOC issues this notice, which allows the claimant to pursue the matter in court.

Online Assessment System A website tool provided by the EEOC in which a potential claimant can analyze his or her discrimination claim via a series of ques- tions, to determine whether bringing a claim is warranted.

Pregnancy Discrimination Act of 1978 (PDA) Federal legislation that amended the Civil Rights Act of 1964; protects women from discrimination on the basis of pregnancy or taking maternity leave as well as prohibits discrimination on the basis of a woman’s ability to become pregnant.

privacy BFOQ Situations where discrimi- nation is allowed to protect a third party’s privacy, as in a single-sex workplace (e.g., dormitory, prison, gym).

rebut the presumption The second step in a discrimination lawsuit, where the defen- dant must give counterevidence to the plaintiff’s prima facie case.

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safety BFOQ Situations where discrimina- tion is allowed to protect a third party’s safety, as in where allowing women to be employed would cause a workplace haz- ard (e.g., in a male correctional facility).

work-sharing arrangement An arrange- ment between the EEOC and the states that automatically files a discrimination suit with the plaintiff’s state. This process preserves any rights the plaintiff might have under state law that are not available through the federal government.

Critical Thinking and Discussion Questions

1. What options for resolution are available to claimants who believe they were discriminated against on the basis of sex?

2. What term describes intentional discrimination based on sex? 3. What are bona fide occupational qualifications? Give an example. 4. What does a “work-sharing arrangement with the EEOC” mean? What does this

mean an employee must do before bringing a discrimination claim? 5. Define these terms: a. Disparate Treatment b. Rebuttable presumption c. Prima

Facie Case 6. What is the difference between a disparate treatment and a disparate impact

case? 7. Magnificent Industries is a clothing distributor located in every state in the

United States and has numerous manufacturing plants as well as wholesale stores. Magnificent employs more than 10,000 workers. Management is com- posed primarily of males, and manufacturing is composed primarily of females. Magnificent argues that one of the reasons females are relegated to work in the manufacturing sector of the plants is that they have experience sewing and designing clothing, and men do not. The company also claims that men do not have a “fashion sense” but women do.

a. Is this case an example of disparate impact or disparate treatment? Why or why not?

b. How would you categorize the arguments set forth by the employer? c. Assume the females join together as a class and bring a lawsuit against

Magnificent. As in Wal-Mart Inc. Stores v. Dukes, what will they have difficulty proving?

d. What will be the respective burdens of each of the parties to the lawsuit? What will the females have to prove? What will the employer have to prove? How will the women rebut the employer’s presumption?

e. Suppose that the employer argues that it is unsafe for men to work in the manufacturing process. Under Dothard, what will result and why?

f. Who do you think would win a Title VII dispute and why? g. If you think the women should win the lawsuit, what do you think they

should win? 8. You are the HR manager for your large company and have a number of requests

for time off under the FMLA. Decide which of the following you would grant and why:

a. An employee asks for time off to attend the christening of one of his children. b. An employee asks for a week off to receive chemotherapy. c. An employee requests a day off to meet with a counselor regarding an adoption.

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