Posted: June 15th, 2022

Bona Fide Occupational Qualification Defense (BFOQ)

Bona Fide Occupational Qualification Defense (BFOQ) –
Wilson v. Southwest Airlines
Prepare a speech based on the USA Employment Law. The speech topic is Bona Fide Occupational Qualification Defense (BFOQ) – Wilson v. Southwest Airlines (case link: https://law.justia.com/cases/federal/district-courts/FSupp/517/292/2386882/)

Bona Fide Occupational Qualification Defense (BFOQ) –
Wilson v. Southwest Airlines
The Southwest’s airline was inaugurated on June 18, 1971. It serves major cities in New Mexico, Louisiana, Texas and Oklahoma (Wilson v. Southwest Airlines Co., 1981). Southwest filed its initial application with the Texas Aeronautics Commission (TAC) in November 1967. This was after its incorporation in March, the same year. It aimed at serving the intrastate markets of Dallas, San Antonio, and Houston. The application to the TAC was bitterly contested. The original TAC decision to permit the defendant to start serving those cities was litigated for over four years through the succession of the federal and state courts.
The southwest has employed females only in the higher customer contact positions of flight attendants and ticket agents. The females dressed in hot pants and high boot. This attracted the attention of male customers to the airline. The female also entertained their customers in various ways. The feminized image has continuously played a big part in the airline’s success (Cantor, 1999). Generally, the southwest airline does not hire male applicants due to the success these females have been bringing. One of the male applicants who was denied a place in the airline decided to sue the airline.
A very important question is presented in the case presented. The case argues whether femininity or more accurately female sex appeal is a bona fide occupational qualification for the jobs of flight attendants and ticket agents with Southwest Airlines. Gregory Wilson, who is the plaintiff, and the group of over 100 male job applicants he represents have challenged the airline’s refusal to hire males as a violation of Title VII of the Civil Rights Act of 1964. The group claims further that Southwest’s published height-weight requirement for flight attendants operates to eliminate a greater proportion of male than female applicants.
It has been unanimously concluded that the airline discriminates based on gender (Littleton, 1986). 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. The application of § 703 depends on an analysis of the employer’s “particular” business. It is therefore important to set forth the factual background of this controversy as a predicate to consideration of Southwest’s BFOQ defense. The facts available are undisputed.
The southwest airline bona fide occupational qualification explained that it shall be an unlawful employment practice if the employer refuses to hire due to discrimination based on race, color, gender, religion or national origin. The senate then proposed an amendment that suggested that no unemployment practice would occur if the employer involved believed that hiring an individual of a particular gender, race color or national origin will be of benefit to the business. This would be accompanied by a piece of substantial evidence.
Relying on the bona fide occupational qualification exception, an employer has the burden of proving that he has a factual basis for believing that all women would be unable to perform safely and efficiently the duties of the job involved (Shapiro, 2018). The qualification being scrutinized is one so important to the operation of the business that would be undermined if employees of the “wrong” sex, in this case, the male ones, were hired. The BFOQ defense is not to be confused with the doctrine of “business necessity”.
The business necessity operates only in cases involving unintentional discrimination or when the job criteria used is fair, but discriminatory in operation. This is only shown when regarding job performance. Recognition of a sex BFOQ for Southwest’s public contact personnel based on the airline’s “love” campaign creates a platform for other employers to freely discriminate. It is done by criticizing sex or sex appeal as a qualification for any public contact position where customers preferred employees of a particular sex, either male or female.
In conclusion, Southwest’s argument that its primary function is to make profits and not to transport passengers must be rejected. Every business’ goal is to make meaningful profits. Based on the analysis of BFOQ, the business essence inquiry focuses on the particular service provided and the job tasks and functions involved. Most businesses focus on their goal. If an employer could justify employment discrimination on the basis that it is necessary to make a profit, Title VII would be nullified in short order.
Customer preference may be taken into account only when it is based on the company’s inability to service its offers or perform the primary function. It is immaterial that Southwest’s feminized marketing strategy was conceived and implemented in good faith. It was not meant to have the desire to discriminate against males. The absence of a bad motive or intent does not redeem employment practices with forbidden discriminatory consequences, even in cases of unintentional discrimination. Unlawful harassment means, working in a hostile environment and quid pro quo harassment.
The USA employment and labor law, 2019 states that the contract law allows parties to state their terms (Employment & Labor Law, 2019). These terms are the employee-employer relationship. The employers should be under a duty of good faith and fair dealing based on the employment contract. Any kind of discrimination is prohibited. This involves hiring and firing, pay, job assignments, pieces of training, layoff, benefits among other terms and conditions of employment. Unlawful harassment based on their membership is under a protected class.

References
Wilson v. Southwest Airlines Co., 517 F. Supp. 292 (N.D. Tex. 1981). (n.d.). Retrieved from https://law.justia.com/cases/federal/district-courts/FSupp/517/292/2386882/
Cantor, R. L. (1999). Consumer Preferences for Sex and Title VII: Employing Market Definition Analysis for Evaluating BFOQ Defenses. U. Chi. Legal F., 493.
Littleton, C. A. (1986). Equality and feminist legal theory. U. Pitt. L. Rev., 48, 1043.
Shapiro, J. (2018). Appearance Discrimination.
Employment & Labour Law 2019 | USA | ICLG. (2019, March 4). Retrieved from https://iclg.com/practice-areas/employment-and-labour-laws-and-regulations/usa.

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