The Bona Fide Body: Title VII's Last Bastion of Intentional Sex Discrimination
McGowan, Sharon M., Columbia Journal of Gender and Law
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. …