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The statute's focus on the individual
is unambiguous. It precludes treat-
ment of individuals as simply components
of a racial, religious, sexual, or na-
tional class

Individual risks,
like individual performance, may not be
predicted by resort to classifications,
proscribed by Title VII.

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:

women

as a class do live longer than men as a class.

In contrast,

although most women are fertile for a significant part of

their adult lives, most working women are not pregnant at

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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.

(Citation omitted.)

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

2e.

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.

at 544.

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

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ties solely because of their ability to become pregnant. Even
prior to the amendment of Title VII in 1978, the Supreme
Court recognized that a "neutral" policy, which adversely
affects women (because of their ability to become pregnant)

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
"benefit" to women, even if the employer believes the policy
is "for their own good," as demonstrated by the fact that the
imposition of an exclusionary employment policy compelled some
women to submit to surgical sterilization in order to secure
their employment. Christman et al. v. American Cyanamid Co.,
No. 80-0024-P (N.D. W.Va.), Second Amended Complaint, I's
33-35. Moreover, good intentions do not insulate employers
from liability for discrimination, whether the policy takes
the form of an overt sex-based classification or a neutral
rule. For example, state protective laws which were designed
specifically to "benefit" women by protecting them from
arduous and dangerous work sometimes also highly remunerative,
interesting, and otherwise desirable were nonetheless
held to constitute unlawful discrimination under Title VII.
Rosenfeld v. Southern Pacific Co., 444 F.2d 1219 (9th Cir. 1971).
See also LeBlanc v. Southern Bell Telephone & Telegraph Co.,
33 F. Supp.

602 (E.D.La. 1971), aff'd 460 F.2d 1228 75th Cir.),
cert denied, 409 U.S. 990 (1972) and General Electric Co. v.
Hughes, 454 F.2d 730 (6th Cir. 1972). The Fourteenth Amendment
likewise prohibits sex-based classifications, even if the
purpose of the classification is "'to favor (women), not to
disfavor them. Wengler v. Druggists Mutual Ins. Co., 446
U.S. 142,150 (1980). See also Orr v. Orr, 440 U.S. 268,283
(1979). The showing of intent to discriminate required in
constitutional challenges is, of course, not imposed in Title
VII cases. Compare, e.g., Nashville Gas Co. v. Satty, 434 U.S.
136 with Personnel Admin. of Mass. V. Feeney, 442

U.S. 256 (1979).

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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

leave:

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.

Under either

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.

Dothard v.

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

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.

defense "was meant to be an extremely narrow exception to the general prohibition of discrimination on the basis of

sex."

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
(1) that the bfoq which it invokes is
reasonably necessary to the essence of
its business (here the operation of an
efficient police department for the pro-
tection of the public), and (2) that
the employer has reasonable cause, i.e.,
a factual basis for believing that all
or substantially all persons within the
class (in our case, persons over 35
years old) would be unable to perform
safely and efficiently the duties of the
job involved, or that it is impossible
or impractical to deal with persons
over the age limit on an individualized
basis.

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.

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