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,
BFOQ Tests
1) That all or substantially all members of the opposite group
(e.g., age, gender) are unable to perform in the role
2) 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
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 NOT warranting 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 preferences of 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)
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
Alabama Prison Environment
• Like most correctional facilities in the United States, Alabama’s prisons are
segregated on 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
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 selfrecognized inability to meet the very standards challenged as being discriminatory.
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
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
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 warned fertile 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
OSHA
General Duty Clause
Each employer shall furnish to each of his employees employment and a place of
employment which are free from recognized hazards 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
Decisions 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 7th circuit ruling under
BFOQ theory
• Title VII, as amended by the Pregnancy Discrimination Act (PDA), forbids sex-specific
fetal-protection policies.
• By excluding women with childbearing capacity from classification based on gender
lead-exposed jobs, respondent's policy creates a facial and explicitly discriminates against
women on the basis of their sex under Title VII.
• Policy is not neutral, because it does not apply to male employees in the same way as it
applies to females, despite evidence about the debilitating effect of lead exposure on the male
reproductive system
BFOQ Summary
[Applies to national origin, religion, and 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 privacy (e.g., female janitors
excluded from all-male bathhouses; Brooks v. AFC Industries,
1982)
– Overall, BFOQs are difficult to defend
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 a bona 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 …”
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
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)
Lorance v. AT&T (1989)
[Seniority System & Timeframe Issue]
1979: New collective bargaining agreement mandates use of seniority in tester
jobs be used (versus previous plant wide seniority); mostly male occupied
position
1982: Economic downturn. Females hired into tester position between were
demoted due to “new” (1979) seniority policy. No demotions would have
occurred if “old” system was in place
1983: Sex discrimination suit filed alleging that the purpose and effect of
the new seniority system was to protect incumbent male testers
Time Frame Issue
Key is determining WHEN the discriminatory act occurred
Supreme Court Decision: Plaintiffs has waited too long (greater than
300 days after the system was adopted) to file their claim after the alleged
unlawful practice occurred
“… 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.”
Civil Rights Act (1991)
Enforcement Provisions 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.
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 mailroon job but could apply for any jobs in the
company for which he was qualified --- none existed
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 question
unless there is more.
• Ability to change parts of seniority system
• Include disclaimers that reduce expectations that system would be followed
Exemption for Religious Institutions
From Title VII: It shall not be an unlawful employment practice for a school, college,
university, or other educational institution or institution of learning to hire and employ
employees of a particular religion if such school, college, university, or other
educational institution or institution of learning is, in whole or in substantial part,
owned, supported, controlled, or managed by a particular religion or by a particular
religious corporation, association, or society, or if the curriculum of such school, college,
university, or other educational institution or institution of learning is directed toward
the propagation of a particular religion.
So, under Title VII, religious organizations are permitted to give employment preference
to members of their own religion. The exception applies only to those institutions whose
“purpose and character are primarily religious.”
Factors to determine this include:
•Do its articles of incorporation state a religious purpose?
•Are its day-to-day operations religious (e.g., are the services performed, products
produced, or the educational curriculum directed toward propagation of the religion)?
•Is it not-for-profit?
•Is it affiliated with or supported by a church or other religious organization?
>>> Only allows religious organizations to prefer to employ individuals who share their
religion. Other forms of discrimination are outlawed (e.g., race, sex)
Ministerial Exception
•Clergy members (e.g., ministerial exemption) cannot bring
claims under the federal employment discrimination laws
(e.g., , Title VII, ADEA, EPA, ADA)
•Based on First Amendment --- governmental regulation of
church administration, including the appointment of clergy,
impedes the free exercise of religion and constitutes
impermissible government entanglement with church
authority
MINISTERIAL EXCEPTION
EEOC v. Hosanna-Tabor
Sequence of Events:
•Plaintiff (Cheryl Perich) after receiving the required training (e.g., coursework, oral exam)
was categorized as a “called teacher (versus “lay” teachers) and was given the formal title of
“Minister of Religion Commissioned”
•Plaintiffs duties overlapped a lot with those of lay teachers. But, she also taught a religion
class, led students in daily prayer and devotional exercises, and took students to school-wide
chapel services on a weekly basis
•Plaintiff developed narcolepsy and took disability leave (Fall of 2004-2005 term)
•In January, plaintiff announced she’d return in February
•Principal told plaintiff a lay teacher had been hired to replace her for the remainder of the
year. Principal also doubted plaintiff was ready to return and, subsequently, congregation
offered to pay portion of her salary to resign. Plaintiff refused.
•In February, plaintiff showed up for work and refused to leave until written documentation
was given that she’d reported to work
Sequence (cont.)
Principal called plaintiff and said she’d likely be fired. Plaintiff responded that
she’d contacted a lawyer and intended to sue.
Plaintiff received termination letter for:
•Insubordination and disruptive behavior
•Damage to the working relationship by threatening to sue
Plaintiff contacted EEOC claiming violation of the ADA; EEOC sued church for
retaliation
Decision:
District Court granted SJD for defendant (Church)
6th Circuit: Plaintiff was NOT a minister (e.g., lay teachers did same work, Plaintiff did
many secular duties)
S.C. Plaintiff was a minister for purposes of the exception – ruled for the Church