Bona Fide Occupational Qualification
• Title VII Sec. 703(e): discrimination does not
violate Title VII “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”
• No statutory BFOQ defense for race or color
discrimination
BFOQ
• Dothard v. Rawlinson (U.S. 1977)
• Correctional counselor positions; weight and
height requirements; Regulation 204
• The disparate impact claim
▫ Prima facie case?
▫ Strength as a job-related requirement?
• Holding
Dothard (cont.)
• The overt discrimination claim; the BFOQ
defense
• The “essence” of the correctional counselor job:
maintain prison security
• Court: a “woman’s relative ability to maintain
order in a male, maximum security, unclassified
penitentiary . . . could be directly reduced by her
womanhood.”
• Holding
Dothard (cont.)
• Justice Rehnquist’s concurrence
▫ Prison’s job-related reason (strength) did not rebut the
prima facie case
 Appearance of strength?
• Justice Marshall’s dissent
▫ Choice to work in a prison should be made by the
individual woman
▫ Prisons are inherently dangerous for both men and
women
▫ The pedestal upon which women have been placed is a
cage
• Justice White’s dissent
BFOQ
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UAW v. Johnson Controls, Inc. (U.S. 1991)
The employer’s fetal-protection policy
The lower courts’ rulings
Court: “The bias in Johnson Controls’ policy is
obvious.”
▫ Title VII Sec. 703(a); the Pregnancy
Discrimination Act (Sec. 701(k))
• The employer “does not seek to protect the
unconceived children of all its employees.”
Johnson Controls (cont.)
• The BFOQ analysis: the “essence” of the
business?
• Safety-to-third-party exception?
• The “unconceived fetuses” of female employees
“are neither customers nor third parties whose
safety is essential to the business of battery
manufacturing.”
• “Decisions about the welfare of future children
must be left to the parents . . . rather than to the
employers who hire those parents.”
Johnson Controls (cont.)
• Issue: tort liability
• Issue: increased cost of fertile women in the
workplace
• Justice White’s concurrence
• Justice Scalia’s concurrence
▫ Could a shipping company lawfully refuse to hire
pregnant women as crew members on long
voyages because providing on-board medical
facilities would be inordinately expensive?
BFOQ?
• Hooters’ food servers?
• Twin Peaks restaurants?
• Tallywackers?
Pregnancy Discrimination
• Your Job Can Now Predict When You’ll Have a
Kid, New York Magazine (Feb. 17, 2016)
• Employers contract with third-party data miners
• Insurance claims are scanned “to find women
who have stopped filling birth-control
prescriptions” and made fertility-related
searches
The Pregnancy Discrimination Act Of
1978
• Title VII Sec. 701(k): “The terms ‘because of sex’
or ‘on the basis of sex’ 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 . . .”
Pregnancy Discrimination
• Newport News Shipbuilding & Dry Dock Co. v.
EEOC (U.S. 1983)
• Employer health insurance plan provides female
employees with benefits for medical conditions,
including hospitalization benefits for pregnancyrelated conditions
• Pregnancy-related benefits for spouses of male
employees are limited and less inclusive than
dependency coverage provided to married
female employees
Newport News (cont.)
• “Male as well as female employees are protected
against discrimination.”
• Court: the PDA “makes clear that it is
discriminatory to treat pregnancy-related
conditions less favorably than other medical
conditions.”
• Held: the employer’s plan unlawfully
discriminates against male employees
Pregnancy Discrimination
• Young v. UPS (U.S. 2015)
• Employer’s brief to the Supreme Court:
“Although not mandated by federal law, UPS has
elected to voluntarily provide pregnant women
the same accommodations as other employees
with similar physical restrictions resulting from
on-the-job activities. Accordingly . . . pregnant
UPS employees will prospectively be eligible for
light-duty assignments.”
Pregnancy Discrimination
• Young v. UPS (U.S. 2015)
• “Other persons” accommodated by UPS
▫ Drivers (1) who became disabled on-the-job, (2) lost
their DOT certifications, (3) suffered from an ADA
disability
• Issue: interpretation of the PDA’s second clause
▫ “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”
Young (cont.)
• Young’s “most favored nation” approach
▫ Court: second clause “does not say that the
employer must treat pregnant employees the
‘same’ as ‘any other persons’”
• UPS’ interpretation of the second clause
• The EEOC’s guidance; Skidmore deference
Young (cont.)
• McDonnell Douglas framework: limited to the
PDA context
• Plaintiff’s prima facie case
▫ (1) Belongs to protected class, (2) sought
accommodation, (3) employer did not
accommodate her, (4) employer did accommodate
others “similar in their ability or inability to work”
• Employer’s legitimate, nondiscriminatory reason
for denying the accommodation
Young (cont.)
• Plaintiff’s pretext showing: to reach the jury the
plaintiff must provide “sufficient evidence that
the employer’s policies impose a significant
burden on pregnant workers,” and that the LNR
is “not sufficiently strong to justify the burden”
• Case remanded