Question: Wilson v. Southwest Airlines Company 517 F. Supp. 292 (N.D. Tex. Dallas Div. 1981)
A male sued Southwest Airlines after he was not hired as a flight attendant because he was male. The airline argued that being female was a BFOQ for being a flight attendant. The court disagreed.

Higginbotham, J. Memorandum Opinion

Southwest conceded that its refusal to hire males was intentional. The airline also conceded that its height- weight restrictions would have an adverse impact on male applicants, if actually applied. Southwest contends, however, that the BFOQ exception to Title VII's ban on gender discrimination justifies its hiring only females for the public contact positions of flight attendant and ticket agent. The BFOQ window through which Southwest attempts to fly permits gender discrimination in situations where the employer can prove that gender is a "bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise." Southwest reasons it may discriminate against males because its attractive female flight attendants and ticket agents personify the airline's sexy image and fulfill its public promise to take passengers skyward with "love."

The airline claims maintenance of its females-only hiring policy is crucial to its continued financial success. Since it has been admitted that Southwest discriminates on the basis of gender, the only issue to decide is whether Southwest has proved that being female is a BFOQ reasonably necessary to the normal operation of its particular business. As an integral part of its youthful, feminine image, Southwest has employed only females in the high customer contact positions of ticket agent and flight attendant. From the start, Southwest's attractive personnel, dressed in high boots and hot-pants, generated public interest and "free ink." Their sex appeal has been used to attract male customers to the airline. Southwest's flight attendants, and to a lesser degree its ticket agents, have been featured in newspaper, magazine, billboard, and television advertisements during the past 10 years.

According to Southwest, its female flight attendants have come to "personify" Southwest's public image. Southwest has enjoyed enormous success in recent years. From 1979 to 1980, the company's earnings rose from $17 million to $28 million when most other airlines suffered heavy losses. The broad scope of Title VII's coverage is qualified by Section 703(e), the BFOQ exception. Section 703(e) states: (e) Notwithstanding any other provision of this subchapter, (1) It shall not be an unlawful employment practice for an employer to hire on the basis of his religion, gender, or national origin in those certain instances where religion, gender, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise. The BFOQ defense is not to be confused with the doctrine of "business necessity" which operates only in cases involving unintentional discrimination, when job criteria which are "fair in form, but discriminatory in operation" are shown to be "related to" job performance.

This Circuit's decisions have given rise to a two step BFOQ test: (1) does the particular job under consideration require that the worker be of one gender only; and if so, (2) is that requirement reasonably necessary to the "essence" of the employer's business. The first level of inquiry is designed to test whether gender is so essential to job performance that a member of the opposite gender simply could not do the same job. To rely on the bona fide occupational qualification exception, an employer has the burden of proving that he had reasonable cause to believe, that is, a factual basis for believing, that all or substantially all women would be unable to perform safely and efficiently the duties of the job involved. The second level is designed to assure that the qualification being scrutinized is one so important to the operation of the business that the business would be undermined if employees of the "wrong" gender were hired.

The use of the word "necessary" in section 703(e) requires that we apply a business necessity test, not a business convenience test. That is to say, discrimination based on gender is valid only when the essence of the business operation would be undermined by not hiring members of one gender exclusively. Applying the first level test for a BFOQ to Southwest's particular operations results in the conclusion that being female is not a qualification required to perform successfully the jobs of flight attendant and ticket agent with Southwest. Like any other airline, Southwest's primary function is to transport passengers safely and quickly from one point to another. To do this, Southwest employs ticket agents whose primary job duties are to ticket passengers and check baggage, and flight attendants, whose primary duties are to assist passengers during boarding and deboarding, to instruct passengers in the location and use of aircraft safety equipment, and to serve passengers cocktails and snacks during the airline's short commuter flights. Mechanical, nongender-linked duties dominate both these occupations.

Indeed, on Southwest's short-haul commuter flights there is time for little else. That Southwest's female personnel may perform their mechanical duties "with love" does not change the result. "Love" is the manner of job performance, not the job performed. Southwest's argument that its primary function is "to make a profit," not to transport passengers, must be rejected. Without doubt the goal of every business is to make a profit. For purposes of BFOQ analysis, however, the business "essence" inquiry focuses on the particular service provided and the job tasks and functions involved, not the business goal. If an employer could justify employment discrimination merely on the grounds that it is necessary to make a profit, Title VII would be nullified in short order. In order not to undermine Congress' purpose to prevent employers from "refusing to hire an individual based on stereotyped characterizations of the genders," a BFOQ for gender must be denied where gender is merely useful for attracting customers of the opposite gender, but where hiring both genders will not alter or undermine the essential function of the employer's business.

Rejecting a wider BFOQ for gender does not eliminate the commercial exploitation of sex appeal. It only requires, consistent with the purposes of Title VII, that employers exploit the attractiveness and allure of a genderintegrated workforce. Neither Southwest, nor the traveling public, will suffer from such a rule. More to the point, it is my judgment that this is what Congress intended.

Questions
1. What should be done if, as here, the public likes the employer's marketing scheme?

2. Do you think the standards for BFOQs are too strict? Explain.

3. Should a commercial success argument be given more weight by the courts? How should that be balanced with concern for Congress's position on discrimination?