Human Resources Management for Public and Nonprofit Organizations

58 Human Resources Management for Public and Nonprofi t Organizations

the U.S. Supreme Court disagreed. The Court found that the policy was

discriminatory since only women employees were affected by the policy:

Respondent ’ s fetal protection policy explicitly discriminates against

women on the basis of their sex. The policy excludes women with

childbearing capacity from lead - exposed jobs and so creates a facial

classifi cation based on gender.... Despite evidence in the record

about the debilitating effect of lead exposure on the male reproduc-

tive system, Johnson Controls is concerned only with the harms that

may befall the unborn offspring of its female employees.

The Court stated that women as capable of doing their jobs as their male

counterparts may not be forced to choose between having a child and

having a job.

In general, the position of the courts regarding BFOQs clearly favors

judgments about the performance, abilities, or potential of specifi c individ-

uals rather than discrimination by class or categories. The Supreme Court

has said that the BFOQ exception to Title VII is a narrow one, limited

to policies that are directly related to a worker ’ s ability to do the job. The

burden of proof is on the employer to justify any BFOQ claim.

For most public sector jobs, it is very difficult to substantiate the

necessity of gender, race, religion, national origin, age, or disability as a

BFOQ. Nevertheless, there are some instances where a BFOQ case can be

made. In Dothard v. Rawlinson (1977), the state of Alabama was permitted

to exclude females from being guards in an all - male maximum - security

prison where 20 percent of the prisoners were sex offenders. In 1996, the

U.S. Court of Appeals at Philadelphia ruled in Healey v. Southwood Psychiatric

Hospital (1996) that gender can be considered a BFOQ for the purposes of

staffi ng a psychiatrist hospital unit that treats emotionally disturbed and

sexually abused children. A female child care worker was assigned to work

the night shift because the hospital needed a balance of men and women

to provide therapeutic care to female and

male patients who might want to talk with

a staff member of their own sex. The court

held that Title VII excuses discrimination that

is justifi ed as a BFOQ when it is reasonably

necessary to the normal operation of busi-

ness. The essence of the hospital ’ s business

requires consideration of gender in staffi ng

decisions because if there are not members

For most public sector jobs, it

is very diffi cult to substantiate

the necessity of gender, race,

religion, national origin, age,

or disability as a bona - fi de

occupational qualifi cation.