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The statute's focus on the individual
Id. at 708,710. (Emphasis added.) In other words, the fact that women as a class share the child-bearing characteristic
does not permit an employer to assume that an individual
woman will bear a child.
In Manhart the generalization was accurate:
as a class do live longer than men as a class.
although most women are fertile for a significant part of
their adult lives, most working women are not pregnant at
Exclusionary policies incorrectly assume that fetal injury
can only occur through maternal exposure after conception,
Such stereotypes are even less defensible than the generalization in Manhart, which still provided an inadequate defense for a policy which treated "la person in a manner which but
for that person's sex would have been different.'"
Id. at 711.
Likewise, in Phillips v. Martin Marietta Corp.,
400 u.s. 542, the Supreme Court ruled that a policy excluding from employment women with pre-school age children, but not
men with pre-school age children, violated Title VII absent
proof that the policy could be justified as a bona fide
occupational qualification ("BF0Q") under 42 U.S.C. S 2000e31!
That policy was based on a generalization that "conflicting family obligations" would interfere with the job
performance of women with small children.
The Court summarily
rejected the proposition that such facial discrimination could
be justified by reference to such unproven assumptions. Id.
37 /See pp. 24-30, infra, for a discussion of the applicability of the BFOQ defense.
Even a policy which does not explicitly discriminate
against women, but which affects them predominantly or ex
ties solely because of their ability to become pregnant. Even
or imposes burdens on women which men do not suffer, violates
38 / Title VII. Nashville Gas Co. v. Satty, 434 U.S. 136 (1977)
38 /Involuntary exclusion from employment cannot be deemed a
602 (E.D.La. 1971), aff'd 460 F.2d 1228 75th Cir.),
U.S. 256 (1979).
Satty indicates that pregnancy-based classifications which, prior to the "pregnancy amendment" were not viewed as per se discriminatory, were therefore "neutral" rules which violate
Title VII if they have a "discriminatory effect."
Id. at 141.
By denying accrued seniority to women who had taken pregnancy
petitioner has not merely refused to extend to women a benefit that men cannot and do not receive, but has imposed on women a substantial burden that men need not suffer.
(Title VII does not] permit an employer to burden female employees in such a way as to deprive them of employment opportunities because of their different role.
Id. at 142.
Most exclusionary policies are either per se sexbased classifications or neutral policies which have a dis
criminatory effect and operate to burden women.
circumstance, Title VII requires that they be stricken unless
properly justified by some recognized defense.
The BFOQ Defense
The sole defense available to an employer who adopts a policy which "explicitly discriminates against women on the
39 / basis of their sex" is the BFOg defense.
Rawlinson, 433 U.S. 321, 332-33 (1977); Phillips v. Martin
Marietta Corp., 400 U.S. at 544; Burwell v. Eastern Air Lines,
Inc., 633 F.2d at 369-70.
It is also settled that this
defense "was meant to be an extremely narrow exception to the general prohibition of discrimination on the basis of
Dothard_v. Rawlinson, 433 U.S. at 334, Burwell v.
Eastern Air Lines, Inc., 633 F.2d at 370, n. 15.
The criteria for judging a BFOQ defense was stated in Arritt v. Grisell, 567 F.2d 1267, 1271 (4th Cir. 1977);
[T]he burden is on the employer to show
39/Section 703(e) of Title VII provides that "notwithstanding any other provisions of this title,
it shall not be an unlawful employment practice for an employer to hire and employ employees on the basis of bona fide occupational qualifications reasonably necessary to the normal operation of that particular business or enterprise." 42 U.S.C. S 2000e-2e.