Same-Sex Privacy and the Unexamined Limits of Antidiscrimination Law

Abstract

Title VII of the 1964 Civil Rights Act, as it has been interpreted by the courts, is an uncompromising statute. It bars adverse employment actions taken on the basis of race, color, religion, sex, and national origin, with only one exception: in cases where an employer can demonstrate that sex, religion, or national origin is a "bona fide occupational qualification [BFOQ] reasonably necessary to the normal operation of that particular business or enterprise” Much of Title VII's impact, of course, depends upon the scope given to this exception, and, in particular, upon whether employers are allowed to claim inconvenience, cost, or customer preference as legitimate components of the BFOQ analysis. Because a broad exception would swallow the rule, the Supreme Court has held that the BFOQ provision was "meant to be an extremely narrow exception to the general prohibition of discrimination” and established a stringent test for its application. An employer seeking a sex-based BFOQ must have a "'factual basis"' to believe that "'all or substantially all women [or men] would be unable to perform safely and efficiently the duties of the job involved,’” or, alternatively, demonstrate that the qualification in question relates to "the 'essence,' or to the 'central mission of the employer's business."' Courts have also strongly rejected attempts to define the "essence of a business" in ways that allow sex discrimination in through the back door of customer preference. The logic is the same as that justifying a narrow BFOQ: As one court put it, “[I]t would be totally anomalous if we were to allow the preferences and prejudices of the customers to determine whether the sex discrimination was valid. Indeed, it was, to a large extent, these very prejudices the Act was meant to overcome.” Thus, courts have refused to allow the preferences of airline customers to justify rejection of men for flight attendant positions, or the biases of customers or associates in other countries to justify refusal to promote women to positions directing international operations.