*1 OF DIRECTOR, DEPARTMENT PUBLIC DOTHARD, OF RAWLINSON ALABAMA, SAFETY et et al. al. Argued April 19, 1977 Decided June No. 76-422. *2 J., opinion Court, which and delivered the in Stewart, Powell J., JJ., joined; in all II of and but Part which C.
Stevens, Burger, joined; JJ., but Part which and and in all III of Rehnquist, Blackmun JJ., joined. Rehnquist, J., opinion and filed an Marshall, Brennan concurring concurring J., in part, in result and in which C. Burger, J., joined, post, p. J., opinion 337. filed an Blackmun, Marshall, concurring part, J., joined, in part dissenting which Brennan, post, dissenting p. J., post, p. opinion, filed 347. White, 340.. Evans, Attorney Alabama,
G. Daniel Assistant General appellants With him on the argued pro cause hac vice. General, were J. Walter Baxley, Attorney briefs William Bowen, Turner Eric A. Attorneys S. Assistant General. Horowitz appellees pro Pamela S. cause for hac argued vice. With on the brief was Morris S. Dees.* her urging Younger,
*Briefs of amici curiae affirmance were filed Evelle J. opinion delivered the Court. Justice Stewart Mr. sought employment Rawlinson Appellee Dianne called prison guard, as a Board Corrections Alabama application After her "correctional counselor.” Alabama a under Title YII class suit rejected, brought was she amended, Act of 78 Stat. Rights the Civil seq. (1970 under 2000e et Supp. V), and ed. and § U. S. C. employ- been that she had denied 1983, alleging §C. U. S. A three- law. ment because of her sex violation federal of Ala- District Federal District Court Middle judge Dothard, Mieth Supp. F. bama her favor. decided from the appeal of this probable jurisdiction 1169. We noted 976.1 judgment. District Court’s U. S. *3 coun- as correctional applied position
At the time for a she college graduate 22-year-old trainee, selor Rawlinson was psychol- correctional major study whose course of had been failed to employment was she ogy. She refused because estab- 120-pound weight requirement minimum meet General, Attorney Attorney General, Grushin, Chief Assistant N. Stanford Gilbert, Abbott, Attorney General, K. and Hadassa Warren J. Assistant Gorton, Attorney California; Slade Deputy General, for the State Tytler, "Assistant Attorney Washington, Morton M. Senior General Attorney General, for Ellington, Attorney General, L. Assistant and Anne Comm’n; by Ruth Gins- Washington Rights Bader State Human Liber- burg, Marjorie Smith, for the American Civil Mazen and Joel Gora ties Union. for Woll, Gold, Lichtman filed a brief Laurence and Judith
J. Albert Legal Defense Fund et al. as amici curiae. the Women’s 1 on the time in their brief sought raise for the first appellants The unconstitutionally extending Title Congress acted claim merits the Equal Oppor Employment coverage governments. See the to state VII’s 24, 1972, 42 C. 103, date, Mar. U. S. tunity 1972, effective Act of 86 Stat. V). having been raised (h) (1970 ed., Supp. Not (a), (b), (f), §§2000e Kress & Court, us. See Adickes v. is not before in the District issue 128, California, 129. 2; Irvine v. 347 U. S. Co., 147 n. 398 U. S. statute. The also establishes Alabama statute by an lished minimum of feet 2 inches.2 height weight, of her application rejected After was because her Employment Oppor- Equal filed a with the charge Rawlinson ultimately right-to-sue tunity received Commission, and complaint then in the District Court letter.3 filed a She similarly chal- women, other behalf of herself and situated minima as violative height weight lenging statutory Four- Equal VII and the Protection Clause Title A was convened.5 three-judge teenth court Amendment.4 Alabama Board Correc- While suit was pending, law physical establishes minimum standards all statute pertinent part, provides: In enforcement officers. “(d) qualifications.- Physical than applicant shall be not less —The height, shall feet inches nor more than feet ten inches
five two six weigh pounds pounds than 120 nor than 300 shall less more satisfactory by appoint- designated as physician certified a licensed authority good physically performance fit ing as in health and for the may good his duties as a law-enforcement officer. The commission qualifications prescribed permit physical cause shown variances from the 1973). Code, (109) (Supp. in this Tit. subdivision.” Ala. §373 V). (f) (1970 ed., Supp. See 42 C. U. S. 2000^5 § who, Mieth, plaintiff complaint A in the was Brenda second named challenged similarly situated, the 5'9" on behalf of herself and others requirements 160-pound position of Alabama for the Equal The District trooper state Protection Clause. violative of *4 appeal from challenge, and defendants did not upheld her aspect judgment. District of the Court’s considered Rawlin- Although single-judge a District Court could have entirely claims, coplaintiff’s on the Con son’s her suit rested Title YII similarity underlying 4, supra. issues stitution. n. See Given the three-judge court cases, inappropriate in the to convene a two was not statutory com presented deal and issues with the constitutional enjoins opera plaint. properly three-judge convened court When statutory grounds, appeal to this Court tion a state law federal Engineers v. judgment from under 28 See lies U. S. C. 1253. § Chicago, Co., Glodgett, 421 423; I. P. 382 U. Philbrook v. & R. S. R. U. S. 707. adopted Regulation establishing
tions Administrative gender assigning criteria for correctional counselors to maxi- for mum-security is, posi- institutions “contact positions,” that requiring tions continual physical proximity close to inmates of the institution.6 Rawlinson amended her class-action Regulation provides pertinent part Administrative as follows: “I. GENERAL regulation purpose policy procedure
“l.The of this is to establish and identifying designating and for posi- Correctional Counselor I institutional require appointment tions which selective certification of either male employees from Department registers. or Personnel female State "II. POLICY
“4. positions All I identify Correctional Counselor will be evaluated to designate require those which selective for appointment certification employee. positions a male either or female Such must fall within occupational qualification fide bona stated in Title of the 4[2]-2000c United States Code .... “5. reg- Selective certification from the Correctional Counselor Trainee requested ister Department will of the State Personnel whenever position being filled which designated has been either a male or only. employee female “HI. PROCEDURE
“8. identify Institutional Wardens Directors will each institutional position requires Correctional they Counselor which feel cer- selective request tification and will designated writing that it be so the Asso- ciate Commissioner for review, Administration for his evaluation, and submission to the Commissioner for final decision. request “9. The will contain responsibilities the exact duties and position will identify following utilize and criteria establish necessary; selective certification is presence “A. That the opposite of the sex disruption would cause of the
orderly running security of the institution. position “B. require That would contact with the inmates opposite presence sex without the of others. “C. position require That patroling dormitories, restrooms, use, or showers during day while frequently, night. or *5 Regulation as also challenge by adding complaint Fourteenth Amendment. VII and the Title violative States,7 United facilities correctional most Like Cur- of sex. on the basis segregated prisons are Alabama’s major operates four of Corrections Board the Alabama rently Kilby Corrections Prison, penitentiaries all-male —Holman Draper Cor- Center, Correction Fountain Facility, K.G. Julia Tutwiler operates also The Board Center. rectional the Number Center, Lee Youth Women, the Frank Prison for Ranch, nine Work Re- Cattle Camp, Honor the State Four Tutwiler is for women. The Julia Centers, of which lease one max- penitentiaries the four male are for Women and Prison living quarters imum-security Their inmate are institutions. showers with communal part large dormitories, most hallways. open the dormitories and toilets that penitentiaries carry on extensive Draper and Fountain strip necessary number of making large farming operations, prison prisoners when re-enter searches for contraband buildings. primary duty
A within these insti- correctional counselor’s inmates security control tutions is to maintain require opposite inmates position would search of “D. That regular sex on a basis. require
“E. That the Correctional Counselor position Trainee not be armed with a firearm. positions are not All Counselor I which
“10. institutional Correctional approved will be filled from Correctional Coun- for selective certification registers regard to selor sex.” Trainee without Although Regulation positions not limited on its face contact institutions, maximum-security the District that it did not Court found “preclude serving positions in the all-male in- . from contact . . [women] Appel- penitentiaries.” Supp., 418 F. at 1176. other than the stitutions only similarly regulation applying to maximum-se- defended the lants curity facilities. Prisons, Note, Segregation American 82 Yale L. J. The Sexual (1973).
327 by continually supervising and observing their activities.8 To be consideration as a correctional eligible counselor, applicant possess must valid Alabama driver’s license, high have a school education or be free from equivalent, its physical defects, ages years be between the and 45 20% years appointment, at the time of and fall between min- requirements imum 2 height weight 5 feet inches, and 6 pounds, 120 and the maximum of feet 10 300 inches, and pounds. Appointment byis with merit, grade assigned each experience applicant based on No and education. written is given. examination litigation the time this
At was in the District Court, the employed Board of people Corrections a total 435 in vari- ous correctional counselor 56 of positions, whom were women. Of women, employed those 56 at were the Julia Tutwiler employed Prison 13 were positions noncontact Women, at the four male maximum-security institutions, and the employed were remaining the other institutions oper- at ated Board of Alabama Because Corrections. most prisoners of Alabama’s are held at the four maximum-se- curity male 336 of penitentiaries, the 435 correctional coun- jobs selor those institutions, majority were of them concededly “contact” classification.9 even Thus, though meeting statutory require- ments, applicants could under Regulation 204 com- job description The official position for a correctional counselor em phasizes counseling security duties; as well the District Court found: “ persons counselors are who are commonly [Correctional referred to as prison guards. primarily Their security duties involve rather than coun seling.” Supp. F. 1175. 9At the yet time trial Board of Corrections had not clas sified all its positions correctional counselor in the maximum-security according Regulation institutions to the criteria established in 204; conse quently only” jobs evidence the exact number of “male prison within the system was not available. of the correc- only about men for equally pete 25% prison system. in the Alabama jobs available counselor tional II “the removal required VII, Congress
In Title enacting employment unnecessary barriers artificial, arbitrary, and invidiously operate to discriminate when the barriers *7 Griggs classification.” impermissible or other basis racial Co., Power District v. Duke 424, 431. The U. S. re- statutory weight minimum height that found as applicants employment for correctional quirements that barrier arbitrary meet sort of counselors constitute the must Title VII forbids.10 employment opportunity equal to that Court erred both appellants assert District The that weight standards discriminate finding height they if that, to find even against women, and its refusal justified “job do, these standards are related.”
A gist statutory the claim that the does not involve requirements against discriminate It as- purposeful discriminatory assertion of motive.11 an (a) (1970 703(a) ed. and VII, Title S. C. Section U. §2000e-2 provides: Supp. V),
“(a) Employer employment practice practices. It shall be an unlawful employer— for an individual,
“(1) discharge any to fail hire or otherwise or refuse to or to any compensation, his against respect discriminate individual with terms, employment, conditions, privileges of because such individ- or race, color, sex, origin; religion, ual’s or national or “(2) limit, classify employees segregate, applicants or for em- his or any ployment any way deprive deprive indi- which would or tend to employment opportunities adversely his or affect vidual otherwise race, employee, color, religion, status as because of such individual’s sex, origin.” national or 335-336, States, United See Teamsters v. 431 U. n. 15. S.
{329 rather, these serted, facially qualification neutral stand- ards work in disproportionately fact women from exclude eligibility employment by the Alabama Board of Cor- rections. We dealt in Griggs Co., v. Duke Power supra, and Albemarle Paper Co. v. Moody, U. S.
similar allegations facially employment neutral stand- ards disproportionately excluded Negroes from employment, and those cases our guide approach here.
Those cases make clear that to establish prima facie case of discrimination, plaintiff need only show facially neutral standards in question applicants select hire in a significantly discriminatory pattern. Once thus shown that the employment standards discriminatory in effect, the employer must meet “the burden of showing any given requirement ... a manifest relation [has] ship employment to the in question.” Griggs Duke Power Co., supra, employer at 432. If proves that the challenged requirements are job related, plaintiff may then show that other selection devices a similar discriminatory without *8 effect would also “serve employer’s legitimate interest ” ‘efficient and trustworthy workmanship.’ Paper Albemarle Co. Moody, supra, v. at 425, quoting Douglas McDonnell Corp. Green, 792, 801. v. U. S.
Although women 14 years age of or older compose 52.75% of population the Alabama and of its total labor 36.89% they hold force, only of its correctional counselor 12.9% positions. In considering the of the minimum height effect weight and standards on this disparity in of hiring rate between the sexes, the District Court found that the 5'2"- requirement operate would to exclude of the women 33.29% in the United States ages between the 18-79, of while excluding only of men between ages. the same The 1.28% 120-pound weight restriction would exclude of the 22.29% women and of men in this age group. When the 2.35% height and weight restrictions are combined, Alabama’s statu- tory standards exclude of the popula- female 41.13% population.12 of the male excluding less than while tion 1% found that Rawlinson had the District Court Accordingly, discrimination. facie case of unlawful sex prima out a made disproportionate of appellants argue showing generalized on national statistics women based on impact They point prima establish a facie case. should not suffice to comparative failure to adduce particular Rawlinson’s coun- applicants for correctional actual concerning statistics how- requirement, no positions selor Alabama. There impact disproportionate of showing ever, that statistical always analysis be the characteristics must based on Co., supra, Griggs Duke Power applicants. See v. actual application process might adequately itself not at 430. The otherwise potential applicant since pool, reflect the actual applying from because qualified people might discouraged inability very standards self-recognized to meet discriminatory. Teamsters United challenged as See being A could States, potential applicant U. S. 365-367. conclude weight and easily height determine her on would be futile. reliance application Moreover, make where misplaced data general population demographic was weight suppose physical height was there no reason markedly men and women differ characteristics Alabama population. from those of national 12Affirmatively stated, approximately the men and 58.87% 99.76% physical qualifications. both From meet these appear separate weight of males it would statistics overlap allowing adding together and for some that after the two from between males the result would be to exclude 2.35% 3.63% statutory height and minima. None of meeting Alabama’s *9 accuracy computations Court’s challenged of the District parties has the any insignificant is in score, however, discrepancy the event on and this male gross disparity the female and exclusions. fight between the disparity greatly the computations exceed under revised the Even high diploma to the school that served invalidate disparity to 34% 12% S., requirement Griggs 401 U. at 430. the case.
(331 reasons, say For these we cannot that the District weight wrong holding statutory height was that the and standards had discriminatory impact applicants. on in a case to ex- plaintiffs required The such are as every possible haust if source ac- evidence evidence, presented tually job its on face conspicuously demonstrates requirement’s impact. If em- grossly discriminatory ployer discerns fallacies or offered the data deficiencies by the he is free plaintiff, countervailing to adduce evidence In his own. this case no such effort was made.13
B turn, appellants’ they We to the that therefore, argument prima have rebutted the facie case of discrimination showing height job that weight requirements they related. These requirements, relationship have a say, to strength, unspecified a sufficient amount of which is but job performance essential effective as a correctional coun- In Court, selor. the District appellants pro- however, no duced evidence correlating height weight requirements the requisite of strength thought amount good job performance. essential Indeed, they failed to any in specific justification offer kind evidence statutory standards.14 height weight The provision statute contains a waiver urge
appellants 2, supra. saves from attack under Title VII. See n. The noted that provision might District Court a valid waiver indeed have effect, applicants but found were not informed of the waiver provision, requested and that the Board of Corrections had never a waiver from the Alabama Peace Training Officers’ Standards and Commission. correctly provision court therefore concluded that the waiver discriminatory administered failed overcome effect of the statute’s provisions. basic perhaps challenge In what variation their constitutional validity itself, 1, supra, VII appellants Title see n. contend the establishment of the minimum standards requires they given greater typically statute deference than is *10 identify appellants If the job-related quality and purpose by adopting could fide, bona their be achieved dir validating applicants strength a test for measures satisfy fully ectly.15 administered, would fairly Such a test, be of it would the standards VII because one Title in the person person for the and job “measure not [s] Co., But Griggs 401 atS., abstract.” v. Duke Power 436. U. nothing present approaches record even such measurement. discussed, Court was
For the have the District reasons we Rights VII of the Civil holding not in Title error application of prohibits Act of as the statu- amended, to tory height requirements Rawlinson and weight represents. class she
Ill
Reg-
statutory height
requirements,
Unlike the
against women on the
explicitly
ulation 204
discriminates
discrimination,
In defense
this overt
basis
their sex.16
legis-
job qualifications.
given private employer-established
The relevant
extending
history
the 1972
Title VII
the States
lative
amendments
Instead, Congress
not, however, support
employers
such
result.
does
principles
applied
Title
be
expressly
VII
indicated the intent that
same
92-238,
Rep.
governmental
private employers
alike. See
R.
No.
H.
(1971).
(1971);
92-415, p.
p.
Rep.
17
10
See also
S.
No.
Schaeffer
(CA9).
Diego
Cabs,
private
for both
Yellow
The District Court
bona-fide-occupational-
qualification (bfoq) defense,
on
uniform
relying
virtually
view of the federal courts
703 (e) provides only
§
the nar-
of exceptions
rowest
to the general
equality
rule requiring
of employment opportunities.
variously
This view has been
In
formulated.
Diaz v. Pan
Airways,
American World
442
F. 2d 385, 388, the
Appeals
Court of
for the Fifth Circuit held
that “discrimination
only
based on sex is valid
when the
essence of the
operation
business
would be undermined
hiring
members of one
exclusively.”
(Emphasis
sex
In
original.)
an earlier
Weeks v. Southern Bell
&
case,
Tel.
Co.,
Tel.
liarly beings of inhospitable one for human whatever *12 held the conditions Indeed, Federal District Court has a prisons State, of confinement the characterized in consti- atmosphere,” violence” and “rampant “jungle Locke, 318, Pugh Supp. v. F. tutionally intolerable. 406 in Ala.). present The case shows that (MD 325 record Sex, 1604 Discrimination Because of 29 CFR EEOC on Guidelines § (1976). 18 Case, 110 Interpretative Clark and See Memorandum of Senators Cong. (1964). 7213 Rec. 19 reflecting in guidelines sex discrimination The EEOC issued qualification position occupational should bona fide to sex its “the (a). narrowly.” to that interpreted be CFR 1604.2 It has adhered § accordingly consistently, of the can principle and its construction statute 434; Griggs Co., S., given weight. v. Duke Power 401 U. at be See Transp. Co., Trail 427 U. v. Fe S. 279-280. McDonald Santa bfoq be employer, exception would have to the case of a state In Equal very interpreted as to to the Protection at the least so conform parties suggest, how do of the Fourteenth Amendment. Clause scrutiny Equal requires rigorous ever, Clause more that the Protection discriminatory employment policy than does Title sexually VII. State’s independent District give to consideration to the There no is thus occasion Regulation the Fourteenth Amendment ruling 204 violates Court’s as well as Title VII. inadequate
because of staff and no made facilities, attempt four maximum-security penitentiaries classify male segregate" or inmates according their offense or level of dangerousness procedure according to that, expert testi- —a mony, is essential penological effective administration. Consequently, the estimated prisoners the male who 20% are sex offenders are throughout penitentiaries' scattered dormitory facilities.
In this environment violence and it disorganization, oversimplification Regulation characterize 204 as an exercise in paternalism.” “romantic Frontiero Cf. Richardson, U. In S. 684. the usual case, argument particular job that a is too dangerous women may appropriately rejoinder be met by the purpose Title VII to allow the individual make woman to for herself.21 choice More is at case, stake how- ever, than an individual woman’s decision to weigh and accept risks of employment position a “contact” maximum-security prison. male
The essence of a job correctional counselor’s is to maintain A prison security. woman’s ability relative to maintain order in a male, maximum-security, penitentiary unclassified type Alabama now could be directly runs reduced her womanhood. There is a basis in fact for expecting that sex criminally offenders who have past assaulted *13 would be moved to do so if again access women were to prison. established within the There would also be a real risk inmates, deprived that other of a normal heterosexual environment, would assault women guards they because were prison system In a women.22 where violence is the order 21See, g., Co., Southern e. Weeks v. Bell Tel. & Tel. 408 F. 2d 232- Colgate-Palmolive (CA5); Co., supra, 717-718; Bowe v. at Rosenfeld Co., supra. v. Southern Pacific The record contains evidence of attack on a female clerical worker involving prison, in an and of an a Alabama incident woman who student by to facilitated guards inmate access of the where day, every institution where dormitory living arrangements, inmate portion where a substantial understaffed, and at random sex offenders mixed composed of population is in- few deterrents there are visible prisoners, with other custodians. mate assaults women dormitory that expert testified
Appellee Rawlinson’s own problem security poses greater inmates a housing aggressive it would be further testified single-cell lockups, than that prison in a where even guards unwise to women as use 10% were crimes and had been convicted inmates sex likelihood prisoners.23 from the other The not segregated woman because she was that would assault a inmates only the victim pose a real threat not woman would penitentiary to the basic control of the but also the assault security person- inmates and other protection of its directly very womanhood would thus employee’s nel. provide security is the capacity undermine her responsibility. correctional essence counselor’s testimony experts from on both was substantial There guards use of women as litigation sides of in Alabama positions existing "contact” under the conditions penitentiaries pose substan- maximum-security male directly prison linked security problem, tial sex of On we conclude guard. evidence, the basis of being male is ruling District was error occupational qualification job for the not a bona fide hostage during maximum-security taken a visit to one of the was institutions. evidently typical. penitentiaries Appellee Rawlin- Alabama’s relatively normal, experts testified that in a stable maximum- son’s two inmates, security liv prison control over reasonable —characterized guards conditions, segregation dangerous ing offenders—women effectively beneficially. Similarly, an amicus brief filed could be used using to that success in the State of California attests State’s penitentiaries. guards in all-male
correctional counselor in a position “contact” in an Alabama male maximum-security penitentiary.24
The judgment is accordingly in part affirmed and reversed in part, and the case remanded District Court for further proceedings consistent with opinion. this
It sois ordered. Mr. Justice Rehnquist, with whom The Chief Justice and Mr. Justice Blackmun join, concurring the result and concurring part.
I agree I with, and III join, Parts of the Court’s opinion in this case and with I judgment. its While also agree with the Court’s conclusion in II Part of its opinion, holding that the District Court was in error” in holding “not the statutory height requirements case this to be by invalidated ante, Title VII, at 332, the issues with which that Part deals are bound to arise so frequently I feel obliged to separately my the reasons for state agreement with its I result. view affirmance of the District respect this essentially as by peculiarly dictated limited factual and legal justifications offered below by appellants on statutory behalf of the requirements. For reason-, do believe —and do not read the Court’s opinion holding as all or many even —that and weight requirements imposed by applicants States on for a multitude of agency jobs law pretermit- enforcement are by today’s ted decision.
I agree that relied upon statistics are case absent sufficient, finding rebuttal, prima sustain of a shows, by contrast, minimum-security The record that Alabama’s facilities, centers, recognized work-release are such as their inmates privileged lightly jeopardized confinement situations not to be dis obeying applicable assigned rules of conduct. Inmates to these institu thought crop” be the “cream of the prison tions of 'the Alabama population. *15 (a)(2), they violation of 703 a signifi §
facie that reveal discrepancy men, the numbers opposed cant between as automatically by disqualified who are reason of women, to weight requirements. The fact that height and these as figures weight, opposed national statistics are pool-of-labor-force statistics, or seem to to statewide does not require to hold Court me to us that District erred mat as Hamling admitting of law in them into v. ter evidence. See States, United cf. Zenith (1974); 87, 108, 418 U. 124-125 S. Hazeltine, Corp. (1969). 123-125 It 100, v. 395 U. S. determine to instance, for the in the first Court, District sufficiently probative appear whether these statistics job given qualification ultimate fact issue—whether a protected disparate impact group on requirement has a some States, ante, School United by Title VII. Hazelwood Dist. v. States, 124- Hamling supra, v. United 108, at 312-313; at see Equality League, 415 U. 605, v. Educational 125; Mayor S. States, McAllister v. United 621 n. 20 see also (1974); Co., Cab United States v. Yellow 338 U. S. (1954); U. S. such determination, In (1949). making 340-342 relevant facts light statistics of all other are to be considered States, 431 U. S. United and circumstances. Cf. Teamsters v. not suffer (1977). relied here do statistics on relevancy from the lack relied obvious of the statistics United School in Hazelwood Dist. the District Court ante, States, say a matter reviewing 308. A court cannot as at they issue or so of law are irrelevant to the contested reliability lacking in be inadmissible. to there If in a Title suit believe the defendants VII any plaintiffs’ statistics that does reason discredit challenge them face, opportunity to on their appear just any as in other lawsuit. the defendants is available to reliability impeach of the statistical may endeavor They rebutting may evidence, they or dis- they may offer evidence, or probative in briefs the which arguments parage plaintiffs’ evidence should be I accorded. agree Since the Court appellants virtually made no such effort, ante, at 331,1 agree also with it that the District cannot be said to have erred as a finding matter of law in prima facie case been made had out in the instant case.
While the District Court’s conclusion is no means required by proffered evidence, am unable conclude clearly District Court’s finding respect was *16 In erroneous. other cases there evidence could different which could height lead a district court to conclude that weight enough predictor in fact an accurate of strength under all such minima. justify, circumstances, the the be found to height requirements Should sufficiently job-related qualification strength advance the the prima case, cases, to rebut facie under our then, the appellee would back to demonstrate burden shift Rawlinson to meet disparate that other without such would also effect, tests, 422 Moody, S. Paper concern. Albemarle U. that Co. v. here, 405, (1975). permissibly But, 425 the District Court nexus enough shown of a appellants concluded that had not even to rebut the inference. case under prima rebut facie
Appellants, order to statute, placed on them to advance had the burden Douglas McDonnell job-related qualification. for the reasons Creen, This burden (1973). Corp. v. U. S. legal by making or by offering evidence could be shouldered any new The District dependent not on evidence. arguments however, only suggested confronted, one Court was strength. qualification reason for the job-related —that physical only job-relatedness of actual argued Appellants job-related urge equally they did not that strength; strength. appearance is the prison guards qualification job of correctional counselor notes, primary As the security maintain and control of “is to prisons in Alabama function I ante, 326, a at at least would .,” the inmates .. prisoners on impact psychological imagine is aided appearance If the heavy guards. presence of tall and here as the District Court upon been strength urged had I think weight minima, a reason reach been entitled to surely have District Court cor- perfectly if For, it even different result than did. preclude Title VII would not related, would think pounds, anyone 5'2" or 120 saying under from a State have a sufficient strong fact, does not matter how no guard. prison be a strength appearance defendant, placed been on has But once the burden the asserted articulate to the defendant up then minima. the use underlying job-related reasons Green, Griggs v. supra., 802; at Douglas Corp. v. McDonnell Paper (1971); Albemarle Co., 401 Duke Power U. S. burden, a of this 425. Because Moody, supra, at Co. v. argu- justified relying ordinarily court is not reviewing pre- were not first job qualification of a ments favor Arnold, Schwinn United States v. court. Cf. sented to the trial Taylor, 224 Thomas v. (1967); Co., 365, 374 n. & 388 U. S. *17 Bruen, 169, (1843). 1 187 Bell v. How. (1912); 84 U. S. of “appearance the present not did even appellants As job- as an asserted the Court strength” contention to District I agree that requirements, qualification for the related reason holding thus Court's met. The District burden was not their of whether such an assertion question the did not deal with case. prima facie appellee Rawlinson’s could or did rebut Brennan Mr. whom Justice with Marshall, Mr. Justice in part dissenting part. and concurring joins, analysis of Alabama’s the Court’s entirely I agree with its prison guards, and requirements of sex on the basis restrictions discriminate finding these II I I join Parts Accordingly, of Title VII. in violation much of agree with Court’s also opinion. of the Court’s the III bona-fide-occupational- of the Part discussion general
341 exception qualification contained in of (e) § Title VII.1 unquestionably is when holds “that correct the exception bfoq extremely was in fact meant to be narrow exception to general prohibition the of on discrimination the Ante, basis of sex.” at See v. Martin Phillips 334. Marietta Corp., U. (1971) (Marshall, S. J., concurring). I must, respectfully disagree with appli- Court’s however, the bfoq exception cation in this case.
The Court properly rejects proffered justifications two denying jobs prison women It guards. simply irrelevant as is that a guard’s occupation is dangerous here some might women protect be adequately. unable themselves permeate Those themes of the testimony state officials but below, as holds, the Court “the argument particular that a job too dangerous is for women” is “purpose refuted VII to Title allow the individual woman make that choice Ante, for herself.” at 335. Some like women, men, some undoubtedly qualified not do not wish to serve as guards, but prison justify does exclusion all from employment women opportunity. Thus, “[i]n ibid., case,” interpretation usual bfoq excep- Court’s hiring qualified tion would mandate guard jobs women for maximum-security institutions. The highly successful experiences allowing job other States such opportunities, see briefs for the States of Washington California and curiae, amici confirm that disqualification absolute of women not, necessary the words Title VII, “reasonably operation” maximum-security normal prison. What would unlawful otherwise discrimina- considered against justified tion Court, however, (e), (e), provides pertinent part: U. S. Section 703 C. §2000e-2 *18 “(1) employment practice employer it shall not unlawful be for an employees on the of employ to hire ... basis ... sex ... those qualifica occupational certain instances . . . sex is a bona fide where ... necessary reasonably operation particular the normal tion of that enterprise or . . . .” business conditions Alabama “barbaric and inhumane”
basis of the have conceded that state prisons, conditions bad so officials Locke, Pugh See v. they Constitution. violate To (MD 1976). me, Ala. Supp. 318, 329, F. wrongs two make analysis saying like distressingly sounds The (e). plain by § It refuted words right. is necessary to the “reasonably be requires bfoq statute f enterprise.” or operation particular o business normal may operate “normally” governmental But no “business” is government Every violation of the Constitution. action those limits limitations. While by constrained constitutional no one would may frequently wish, more than we be violated func disputes operation” government that the “normal all operating prison A place system tions takes within them. exception is an Eighth in blatant violation Amendment Judge possible speed, that should be remedied all as Locke, supra, comprehensive Pugh order in Johnson’s viola designed In the the existence such meantime, to do. tions should them “normal.” legitimatized calling accept Nor them conduct justifying should the Court remedy age-old would otherwise violate statute intended discrimination. objec- statutory Court’s less error construction is it toward women. however, displays than the
tionable, attitude to women recognizes possible harm Though the Court unacceptable guards disqualifying is an reason for women, prison speculative relies on an equally instead threat of female discipline supposedly sexuality generated to show There record guards. simply no evidence security in any guards danger that women create already which prisons significantly greater Alabama than that discussed dangers exception All of exists. one —-with prison gender inherent in a whatever setting, below—are guards. *19 security to guards The Court first women as sees threat on few visible deterrents to inmate because "there are assaults Ante, guard In fact, any prison women custodians.” at 336. constantly by inmates, the of attack subject to threat only protection. are guard's deterrents the real “invisible” or her to ward primarily ability on his prison guard relies No typically order. Guards are off an inmate attack maintain numbers of could overcome unarmed and sheer inmates other enforcement complement. like all law Rather, normal moral primarily must on the prison guards rely officers, punishment of authority of office and the threat future their sense, expert As one common for miscreants. testified below, stability qualities and mental and emotional are the fairness, App. of 81. cope dangers job. needs guard men, no than qualified properly women, trained Well less weapons disposal. psychological at their have these severity in the particular discipline problems The of maximum-security no prisons justification Alabama also The District the discrimination Court. sanctioned Locke, spend Pugh supra, guards found v. that “must Court protect attempting maintain control or all their time If face Supp., guards 406 F. at 325. male themselves.” could it is see how impossible situation, difficult to women type problem worse, precisely relies make unless one Title against agrees generalized bias women much VII was intended to For example, outlaw. differ- testimony individual appellants’ ignores witnesses “ancient among ences members of sex and reads like each Martin proper Phillips canards about the role of women.” claimed Corp., S., Marietta 400 U. at 545. witnesses are they guards disciplinarians; women are strict subduing physically capable protecting less themselves and they unruly advantage inmates of them inmates; take figures mothers, strong did their while male father guards Yet and so on.2 the record easily discipline, maintain who guards has not led to presence shows amounting to a serious breach security incident single *20 And, any event, “[g]uards in Alabama any institution.3 Pugh Locke, dormitories,” rarely cell blocks and enter the v. attacks the danger inmate is Supp., 406 at where F. greatest.
2 111-112, 117-118, 151-153, 263-264, See, g., App. 144, 147, 290- e. up Commissioner of Corrections summed these 301-302. The State testimony: prejudices his
“Q 5'6", perform job lbs., Would a male that be able to in an all male Counselor institution? of Correctional Well, yes. qualifies otherwise, “A if he
“Q perform lbs., all the 5'6", But a able to female would not be duties?
“A No.
“Q you opinion? What do basis use as a physical “A The innate female. The intention between a male and a go capabilities, psychic make-up vs. of a female emotions into the psychic make-up type male. The the rural inmate of a attitude of feeling superior has; we have vs. that a man his- of a woman. The torically, Id., over that of a female.” at 153.
Strikingly century expressed ago similar a Jus- sentiments were long tice of this a case since discredited: say am prepared “I it is fundamental one of [women's] rights privileges every position, and office and in- to be admitted into cluding require highly special demanding those qualifications which responsibilities. special my opinion, particular view of the ... [I]n characteristics, destiny, women, province it is within the mission legislature offices, callings positions, what shall ordain discharged by men, filled and and shall receive the benefit of those ener- gies responsibilities, pre- and that firmness which decision and are predominate Illinois, sumed to in the sterner sex.” Bradwell Wall. 130, 139, (1873) (Bradley, J., concurring). 3The Court involving potentially dangerous refers to two incidents at prisons. Ante, tacks on women 335-336, at 22. But these did not n. officers; involve trained one a clerical corrections victim was worker and visiting the other a student on a tour. appears
It the real disqualifying factor in the Court’s Ante, employee’s very view is womanhood.” “[t]he at 336. The Court refers to large number of sex offenders prisons, Alabama and to likelihood that inmates “[t]he woman Ibid. assault a because In was a woman.” short, she justification the fundamental for the decision is that women guards generate will assaults. sexual With respect, all regrettably perpetuates rationale one the most insidious of myths the old about women —that women, wittingly or not, objects. are seductive sexual The effect made decision, am the best of intentions, sure to punish very presence because their might provoke sexual It assaults. is women who to pay price job made oppor in lost depraved tunities by prison threat conduct inmates. *21 Once again, pedestal upon which women have been “[t]he placed . . . upon has closer , inspection, been as a revealed Inn, Kirby, Sail’er Inc. v. cage.” 3d 1, 5 Cal. 2d 20, 485 P. (1971). 541 It particularly is ironic cage that the is erected response here to feared imprisoned misbehavior by criminals.4 points
The Court no to evidence the to support record the asserted “likelihood that a assault woman inmates Ante, she was a woman.” Perhaps because at 336. the Court upon sense, common or relies “innate Brief recognition,” 51. Appellants But the danger emotionally in this laden is context that common sense will be used to mask the “ ” paternalism’ ‘romantic persisting discriminatory atti- irony multiplied The is the fact that enormous staff increases are required by Pugh the District Court’s order in Locke, Supp. F. (MD 1976). necessary Ala. This hiring opportunity perfect would be a appellants remedy to past their against women, discrimination but permits instead the Court’s policy decision Moreover, to continue. improved Pugh once conditions are order, accordance with the problems that perceives guards Court with women will be substan tially alleviated. me, Ante, To at 335. properly eschews. tudes is that incidence recognition matter of innate only compared guards attacks on will sexually motivated be minute guard because will assault” inmates to the “likelihood guard. he or she is on female both to attacks proper response inevitable
The employment opportunities limit is to guards male not com- to their wish to contribute law-abiding women who against action punitive to swift and sure munity, but take goals of the one of the inmate offenders. Presumably, anti- of inmates’ prison system is eradication Alabama to live will able patterns prisoners social behavior so process society. begin can Sex offenders one free day acceptable socially by learning guards relate women because of job opportunities deprive To women manner. is turn our of convicted the threatened behavior criminals priorities upside social down.5 I the sex discrimination
Although countenance do employment argue of women appellants restrictions strange privacy. justified by It indeed inmates’ also consideration of years violating been basic hear who most state officials have for prisons suddenly decency operation principles in the their of human privacy. stranger become concerned about inmate It still that these guards positions same officials in contact in a number of allow nonmaximum-security institutions, privacy protect but strive to inmates’ severely prisons personal in the freedom is most restricted. have where *22 nothing appellants’ professed no but doubt on this concern is record that a feeble excuse for discrimination. may As District suggested, possible, the it well be a constitu- once tionally adequate rearrange assignments available, is to so that staff work
legitimate jobs privacy respected denying inmate without to concerns are Finally, guards professional women. if women in manner at behave they times, engender reciprocal respect all inmates, will who will rec- from ognize privacy being that their is no than if invaded more a woman doctor suggestion implicit argument examines them. privacy in the unlikely such behavior professionalism on either to the side is insult guards dignity of and the of inmates. Court’s majority, condoned the is fortunate that the I carefully it. trust decision is limited to the facts before im recognize decision was the lower courts will in Alabama pelled by shockingly inhuman conditions [bfoq] excep “extremely narrow and prisons, thus “to allowed ante, will not be recognized 334, tion” at here, Phillips v. against rule” sex discrimination. See swallow the Expansion Corp., 400 U. at 545. S., Martin Marietta would erect today’s beyond factual basis decision its narrow women. equality to a serious roadblock economic in No. 76-255 dissent- concurring Mr. Justice White, 76-422. ing No. Dist. v. School join opinion Court’s Hazelwood ante, with reservations States, p. but 76-255,
United No. data applicant pool neglect of respect to the relative discrimination employment finding prima facie case percent- disparity the areawide on the between heavy reliance percentage public school teachers age black issue teaching Hazelwood’s staff. Since blacks on hiring after blacks in against discriminated whether Hazelwood perhaps the Govern- to it in applicable became Title VII prac- hiring to Hazelwood’s initially have looked ment should years with 1973-1974 academic in the 1972-1973 and tices history rather than applicant pool, respect to the available school from other work-force statistics comparative suggesting record is evidence Indeed, there districts. hired a of only 2%, black enrollment with a that Hazelwood, applicants of white applicants than of black higher percentage permits course, opinion, The Court’s years. for these two on remand pool data applicant Hazelwood introduce discriminatory pattern prima facie case order to rebut only fair and realistic allocation may be the practice. or This should arguably but 'the United States burden, of the evidence applicant pool to adduce evidence required been have *23 At presumption. least facie prima to its it was entitled before ground some defensible present required been have might of Hazelwood’s composition racial that the believing for for school the same as that pool roughly was the applicant comparative relying before general area, in the districts case. prima its facie work-force data to establish I more trouble Rawlinson, have 76-422, In No. Dothard v. made was discrimination prima facie case sex agreeing height the Alabama showing out statistics of women percentage larger exclude a requirements would Hazelwood, issue is the men. As in the United than of States or with actual dealing was whether there discrimination was at least but Hazelwood there potential applicants; of the area- composition argument colorable the racial for the proxy force was a reasonable wide teacher work hence that a pool composition applicant the relevant on the percentage of blacks large divergence between force teacher work percentage and the in the teaching staff dealing a fair inference of racial raised discrimination I Dothard, unwilling In am applicant pool. however, or interested applying of women percentage believe that approximates in Alabama applying jobs prison guards popu- either national or percentage in the state composition A show plaintiff could, course, lation. the exclusion of non- applicant pool was distorted discrimi- applicants apply allegedly who because did But no was made or natory job requirement. showing such I do not know what attempted here; although even I large percentage not now that a is, fact am convinced actual seriously or of those who are applicants, of the actual women prison guard positions fail to applying, interested in weight requirements. Without a more satisfy conclude satisfactory issue, appel- on this cannot record prima made out a facie case for Rawlinson has either lee proved of the restrictions or otherwise that she invalidity was *24 improperly employment denied prison guard. as a There I showing no do being discrimination, question not reach the justification; nor, since she does not meet the threshold I requirements prison becoming guard, need with the deal gender-based requirements positions. contact dissent from judgment Court’s in Dothard insofar it affirms the judgment of the District Court.