*1 TUTTLE, AINSWORTH Judges. SIMPSON, Circuit Judge; TUTTLE, Circuit important appeal presents This Air- question Pan American of whether appellant refusal to hire lines’ *2 386 (1) solely of to to on the their fail or refuse to or class males basis hire discharge (1) any individual, 703(a) VII of Title or other- sex violates § against Rights any in- Because we to Civil wise discriminate 1964 Act. compen- being respect a dividual to his a female is not “bona feel that with terms, conditions, sation, privi- occupational qualification” for the or fide attendant, appellee’s leges
job
flight
employment,
of such
because
cabin
solely
race, color, religion, sex
appellant’s
be-
hire
class
individual’s
refusal to
**
origin
sex,
a vio-
*.
their
does constitute
or national
cause of
lation of
Act.
by
scope
qualified
The
of this section is
703(e)
in
in dis-
states:
case are not
which
§
facts
this
job
pute.
applied
as
for a
Celio Diaz
Notwithstanding
(e)
any
pro-
other
flight
Pan Ameri-
attendant with
cabin
subchapter,
vision
rejected
in
can Airlines
He was
1967.
(1) not be
unlawful em-
shall
an
policy of restrict-
Pan Am had a
because
ployment practice
employer
an
for
ing
hiring
position
fe-
to
for
its
employ employees
hire
to
and
n * * *
charges
filed
with
males. He then
Equal Employment
religion,
on the basis of his
Opportunity
Com-
sex,
origin
or national
in those cer-
alleging
(EEOC)
Pan Am
mission
sex,
religion,
tain instances where
against
unlawfully
had
discriminated
origin
oc-
bona
or national
is a
fide
grounds
The Commis-
him on the
of sex.
reasonably
cupational qualification
probable
his
to believe
sion found
cause
necessary
to
normal
charge,
resolve the
unable to
but was
particular
en-
of that
or
through
with
matter
conciliation
* *
terprise
*.
in
a
action
Diaz
filed
class
Am.
next
appellee
Since it has
admitted that
been
the United
District Court
States
sex,
has discriminated on the basis of
behalf
Florida on
Southern District of
effect,
situated,
turns,
case,
similarly
result
in this
and
of himself
alleging
others
given
excep-
on the construction
to this
had violated Sec-
that Pan Am
Rights Act
tion.
tion
of the 1964 Civil
703
refusing
employ
the basis
him on
outset,
note, at the
there
sought
injunction
sex;
and
he
legislative
guide
history
is
our
little
damages.
adding
interpretation. The amendment
policy
had a
Pan Am admitted
religion
“race, color,
“sex” to
word
restricting
hiring
the cabin
its
day
origin”
adopted
and national
was
one
position to females.
attendant
Rights
passage
before House
of the Civil
primary
parties stipulated that the
both
en
floor
Act.
It was added
whether,
issue
Court was
for the District
gendered
In at
little relevant debate.
attendant,
be-
for the
ing
Congress’
tempting
intent
to read
occupational
a
is a “bona fide
female
however,
circumstances,
rea
these
BFOQ)
(hereafter
qualification
reason-
reading
assume,
from a
sonable
operation”
ably necessary
normal
Congress'
itself,
main
statute
American’s
of Pan
business.
goals
equal
provide
access to
was
men
women.
market for both
being
fe-
a
The trial court found that
South
this court Weeks v.
as
D.C.,
F.Supp.
BFOQ,
male
a
311
was
Co.,
Telegraph
5
Telephone and
ern Bell
detail,
findings
discussing
its
stated,
clearly
Cir.,
F.2d
at 235
necessary
forth the
however, it is
to set
purpose
was
Act
this
view
within which we
framework
principle
in the
a
law
foundation
case.
Construing the
of nondiscrimination.
Rights
703(a)
Section
Civil
principle
embodying
a
such
statute
provides,
part:
Act
Congress
assumption based
sought
(a)
employ-
that would
a formula
It
an unlawful
shall be
re-
of our labor
optimum use
practice
employer—
ment
for an
achieve
but,
importantly,
experience
more
sources
with both
female
male
develop
would enable individuals
cabin attendants it had hired over the
years,
individuals.
the trial court found that Pan
hiring policy
current
the result
was
goal,
Attainment
this
how
pragmatic
“representing
of
judgment
process,
ever,
is,
stated
limited
*3
upon adequate
made
evidence
occupational qualification
bona fide
ex
acquired through Pan Am’s considerable
construing
ception
703(e).
in section
In
designed
experience,
yield
under
provision,
feel,
this
we
as did the court
operating
Pan Am’s current
conditions
totally
Weeks, supra,
in
that it would be
average performance
pas-
better
for its
that
anomalous to do so in a manner
sengers
policy
mixed
than would a
would,
effect,
exception
permit
in
the
hiring.”
(emphasis
male and female
adopt the
we
swallow the rule.
added)
performance
of female at-
guidelines
state that “the
EEOC
which
tendants was better
the sense that
that
fide
Commission believes
the bona
they
superior
were
non-mechani-
such
occupational qualification as
sex
“providing
cal
of the
re-
interpreted narrowly.”
should be
giving
passengers,
assurance to anxious
1604.1(a)
scrutiny
CFR
close
personalized
and,
courteous
general, making flights
service
language
compels
exception
the
pleasurable
this
As one commentator has
result.
possible
imposed
within the limitations
noted:
by
operations.”
aircraft
“The sentence
several re-
contains
The trial court also found that Pan
adjectives'
phrases:
strictive
passengers overwhelmingly prefer-
Am’s
applies
‘in those certain instances’
by
red to be served
female stewardesses.
qualifica-
where there are ‘bona fide’
Moreover,
expert
the
on
basis of the
tes-
‘reasonably necessary’
tions
the
timony
psychiatrist,
of a
the court found
‘particular’ enter-
of that
airplane
represents
that an
a
prise.
Congress
The care with which
unique
an air car-
environment which
emphasize
has chosen the
words
required
rier
take account of
scope
function and to limit
special psychological
passen-
of its
needs
exception
it had
in-
indicates that
no
gers.
psychological
These
are
needs
opening
tention of
the kind of enor-
by
This is
better attended to
females.
gap in
mous
which
exist
law
would
say
no males
not
that there are
who
example]
employer
if
an
could
[for
necessary qualities to
would not have the
against
legitimately
a
discriminate
functions,
perform these non-mechanical
group solely
employees,
because his
actu-
that the
but the trial court found
customers, or clients discriminated
hiring process
make
would
alities
against
group.
that
Absent much
males.
to find these few
it more difficult
Indeed,
language,
explicit
more
such
broad
men to the
admission of
“the
exception
should not
assumed
be
hiring process,
present
state
in the
largely
it would
the act.”
emasculate
selection,
employment
would
the art of
added)
(emphasis
65 Mich.L.Rev.
unsatis-
the number of
have increased
factory
(1966).
hired,
reduced
employees
Thus, it is
with this orientation
average
Pan
performance of
levels
we
de-
now examine the trial court’s
complement
attendants.
”
**
*
upon
cision.
conclusion was based
Its
appears
a sum-
to be
In what
(1)
history
its view of Pan Am’s
trial
difficulties which
mation
flight attendants;
(2) passenger
use
admitting
from
follow
would
court found
(3)
preference;
psychological rea-
basic
“that to
said
the court
to this
males
(4)
preference;
ac-
sons for the
qualification
female sex
eliminate
hiring process.
tualities
best available
simply
eliminate
would
likely
screening
applicants
out
Having
submit-
tool
the evidence
reviewed
unsatisfactory
reduce
and thus
regarding
its own to be
American
ted
Pan
(em-
argue, however,
Appellees
in so
average
performance.”
level of
doing they
complied
rule
added)
have
with
phasis
case, the
In that
court stated:
Weeks.
give
reading
narrow
we
Because of the
principle of non-
that the
We conclude
703(e),
do
feel
we
to section
requires
discrimination
hold
we
findings justify the discrimination
these
practiced
rely
fide
that in order to
occupational
bona
Am.
exception
qualification
employer
proving
the burden of
has
begin
proposition
with the
to be-
that he had reasonable cause
“necessary” in
the use
the word
is,
lieve,
for be-
a factual basis
apply
703(e) requires
that we
section
lieving,
substantially all
that all or
necessity test, not a business
be unable to
women would
say, dis
That
is to
convenience test.
safely
efficiently
*4
of the
the duties
only
on sex is valid
crimination based
job
Id.
91 S.Ct. L.Ed.2d 158 interpretation
“the administration enforcing agency
Act is entitled great also, deference. See United City Chicago, 8, *5 States v. 91 400 U.S. 18, (1970); L.Ed.2d 9 Udall S.Ct. COMPANY, RALSTON PURINA 792, Tallman, 1, U.S. 85 S.Ct. v. Plaintiff-Appellee, (1965); Reactor De L.Ed.2d 616 Power Electricians, velopment 367 U.S. Co. v. CORPORATION, GENERAL FOODS (1961). 396, 1529, 81 S.Ct. 6 L.Ed.2d Defendant-Appellant. recognize public’s we While No. 20011. finding expectation of sex in a particular may initial role cause some Appeals, United States Court difficulty, totally anomalous it would be Eighth Circuit. preferences if we were to allow the 26, May prejudices determine of the customers to whether the sex discrimination was valid. extent, large was, these to a
very meant the Act was prejudices feel overcome. we that customer may preference into account be taken company’s when based
inability primary func
tion or service offers. argues course, Am
Of preferences
customers’ are not based on ability thinking,” “stereotyped but women stewardesses better job. non-mechanical
Again, as- since these stated business, tangential pects are to the prefer cannot them
fact that customers
justify sex discrimination. judgment case is reversed proceedings not incon-
is remanded for opinion. sistent with this