The statute's focus on the individual like individual performance, may not be 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 any given point in time. See PP. 6 supra. However, 9, [e]ven a true generalization about the 435 U.S. at 708-90. 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 "'a 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 ("BFOQ") under 42 U.S.C. $ 2000e371 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. at 544. 2e. 37/See pp. 24-30, infra, for a discussion of the applica bility of the BFOQ defense. Even a policy which does not explicitly discriminate against women, but which affects them predominantly or exclusively, may also run afoul of Title VII. Such policies perhaps entitled "Avoidance of Reproductive Hazards" unless Even applied equally to men also deny women employment opportunities solely because of their ability to become pregnant. 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 (5th 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). 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 does not] permit an employer to burden Id. at 142. Most exclusionary policies are either per se sexbased classifications or neutral policies which have a discriminatory 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 BFOQ 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 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 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. |