Consolidated Pretrial Proceedings in Airline Cases, In re

• Decision Date: 24 August 1978
• Docket Number: No. 77-1325,77-1325
• Parties: 17 Fair Empl.Prac.Cas. 1513, 17 Empl. Prac. Dec. P 8586 In re CONSOLIDATED PRETRIAL PROCEEDINGS IN the AIRLINE CASES. Appeal of AMERICAN AIRLINES, INC., and Trans World Airlines, Inc.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1142

582 F.2d 1142

17 Fair Empl.Prac.Cas. 1513, 17 Empl. Prac.

Dec. P 8586

In re CONSOLIDATED PRETRIAL PROCEEDINGS IN the AIRLINE CASES Appeal of AMERICAN AIRLINES, INC., and Trans World Airlines, Inc.

No. 77-1325.

United States Court of Appeals Seventh Circuit.

Argued Jan. 26, 1978.

Decided Aug. 24, 1978.

Laurence A. Carton, Chicago, Ill., for appellant.

Aram A. Hartunian, Chicago, Ill., for appellee.

Before FAIRCHILD, Chief Circuit Judge, and PELL and SPRECHER, ^* Circuit Judges.

PELL, Circuit Judge.

This is an interlocutory appeal under 28 U.S.C. § 1292(b) of two district court orders. Pretrial proceedings in the district court involved consolidated Title VII ¹ class action suits by female flight cabin attendants against American Airlines, Inc. and Trans World Airlines, Inc. (TWA). Subsequent to the filing of this appeal, American entered into a settlement agreement which was challenged and approved on appeal. Airline Stewards and Stewardesses Association, Local 550 v. American Airlines, Inc., 573 F.2d 960 (7th Cir. 1978).

The October 18, 1976 Order

TWA thus remains as the only appellant and appeals from the district court's summary judgment order of October 18, 1976, which held TWA's "motherhood" restrictions prior to October 1970 to be a violation of § 703(a) of the Civil Rights Act, 42 U.S.C. § 2000e-2(a). ² Specifically, TWA maintained a policy of removing female flight cabin attendants from flight duty while pregnant, and thereafter if a child was born. This policy also extended to female flight cabin attendants who adopted a child. These employees who became mothers either by childbirth or by adoption were terminated permanently unless they were willing to accept employment in ground duty positions. This policy, however, did not apply to their male counterparts. Male cabin attendants, designated "pursers" by TWA, could remain on flight duty after becoming a parent. Although pursers served on international flights, their responsibilities were substantially the same as those of female flight cabin attendants. ³

TWA challenges the summary judgment on the grounds that: (1) its policy was not gender-based and therefore did not constitute sex discrimination; (2) its policy did not have a discriminatory effect; and (3) if the policy did discriminate on the basis of sex, the discrimination was a bona fide occupational qualification (BFOQ) reasonably necessary to the normal operation of TWA's business. ⁴

To clarify the challenged portion of TWA's policy, the plaintiff class does not challenge that aspect of TWA's policy which removed female flight cabin attendants from flight duty when they became pregnant. Furthermore, the district court's order, by reference to an earlier order involving American Airlines, specifically stated that this aspect of the policy was not discriminatory. See Condit v. United Air Lines, 558 F.2d 1176 (4th Cir. 1977), Cert. denied, 535 U.S. 934, 98 S.Ct. 1510, 55 L.Ed.2d 531 (1978). At issue then is only the policy of requiring female cabin attendants who become mothers to resign or accept ground duty positions while not imposing similar restrictions on their male counterparts who become fathers.

In arguing that its policy was not gender-based, TWA relies on General Electric Co. v. Gilbert, 429 U.S. 125, 97 S.Ct. 401, 50 L.Ed.2d 343 (1976), in which the Supreme Court held that General Electric's disability benefit plan did not violate Title VII even though it failed to cover pregnancy-related disabilities. To draw support for its argument from Gilbert, TWA appears to focus on the maternity leave aspect of its policy and to minimize addressing the only portion of the policy that is at issue the no-motherhood restriction. Gilbert clearly provides no support for the proposition that TWA's no-motherhood policy withstands Title VII scrutiny.

TWA's no-motherhood policy in our opinion provides a clear example of sex discrimination prohibited by § 2000e-2(a). The Supreme Court, in applying that provision, has held that an employer may not refuse to hire women with pre-school-age children while hiring men with such children. Phillips v. Martin Marietta Corp., 400 U.S. 542, 91 S.Ct. 496, 27 L.Ed.2d 613 (1971). TWA's policy discriminated in the same manner.

TWA next argues that its policy did not have a discriminatory effect. This argument is irrelevant. In Title VII cases, discriminatory effect becomes an issue when the employer has a facially neutral practice. In those cases, the plaintiffs can establish a prima facie case by proving that the practice has a discriminatory effect. See Dothard v. Rawlinson, 433 U.S. 321, 329, 97 S.Ct. 2720, 53 L.Ed.2d 786 (1977). We need not reach that issue in the present case because TWA's policy was discriminatory on its face.

Finally, TWA argues that if its policy did discriminate on the basis of sex, the discrimination was a BFOQ reasonably necessary to the normal operation of TWA's business. The BFOQ, often described as an exception to Title VII's general prohibition of sex discrimination, is, at least in the view of one commentator, more accurately designated as a justification for sex discrimination. ⁵ TWA argues that its no-motherhood policy, albeit discriminatory, was justified as a BFOQ because (1) mothers of young children would have unacceptably high rates of absenteeism, (2) mothers might be subject to overriding domestic concerns that would make them questionable risks for competent performance in times of crisis, and (3) mothers returning from maternity leaves of absence would require expensive retraining.

Our analysis of the BFOQ issue must begin with the Supreme Court's most recent pronouncement in Dothard v. Rawlinson, supra at 334, 97 S.Ct. at 2729.

We are persuaded by the restrictive language of § 703(e) (§ 2000e-2(e)), the relevant legislative history, and the consistent interpretation of the Equal Employment Opportunity Commission that the bfoq exception was in fact meant to be an extremely narrow exception to the general prohibition of discrimination on the basis of sex.

The Court, in a footnote, also stated that the EEOC's narrow construction of the statute, 29 C.F.R. § 1604.2(a), can be given weight. 433 U.S. at 334 n.19, 97 S.Ct. 2720. The lower court interpretations of the BFOQ prior to Dothard are not entirely consistent. ⁶ In view of the Supreme Court's recent approbation of "an extremely narrow" construction, we are of the opinion that the Ninth Circuit's construction is the most appropriate. In Rosenfeld v. Southern Pacific Co., 444 F.2d 1219 (9th Cir. 1971), that court stated that

based on the legislative intent and on the Commission's interpretation, sexual characteristics, rather than characteristics that might, to one degree or another, correlate with a particular sex, must be the basis for the application of the BFOQ exception.

444 F.2d at 1225. Thus, attributes that are culturally more common to one sex than the other are an insufficient basis for a BFOQ. Cultural stereotypes should not be employed to justify sex discrimination.

With this background, we now turn to the three issues which TWA argues present genuine issues of material fact on the BFOQ issue sufficient to defeat summary judgment. First, TWA argues that mothers, but not fathers, of young children would have an unacceptably high rate of absenteeism. They submit that absenteeism is a serious problem among flight attendants. This alone, of course, does not address the critical issue of whether female parents have a sexual characteristic different than male parents which would cause them to be absent more often. TWA, in an attempt to raise a genuine issue of material fact, points to the deposition of David J. Crombie, Vice-President of Industrial Relations at TWA, which states that problems of absenteeism have been exacerbated since TWA permitted mothers on flight duty. This is insufficient to defeat summary judgment because he does not attribute the increased absenteeism problem directly to the mothers. Indeed, he presents no evidence nor even states that mothers were absent more often than fathers, information, if it exists, that surely would be available to him. ⁷ TWA, in its brief, can only state that "(t)he airlines Could not be sure that absenteeism among flight attendants with young babies would not increase greatly." (Emphasis added.) The whole tenor of its argument is speculative and relies heavily on stereotypical assumptions, a posture which is anathema to the maturing state of Title VII analysis.

TWA next argues that it raised a genuine issue of material fact as to a BFOQ in its allegation that mothers might be subject to overriding domestic concerns that would make them questionable risks for competent performance in times of crisis. In support of this allegation TWA primarily offers affidavits of Dr. L. G. Lederer, Corporate Medical Director of American Airlines, Dr. Charles C. Gullett, Corporate Director Medical Services & Safety Engineering for TWA, and the deposition of David J. Crombie.

Dr. Lederer's affidavit states that a mother's concern for her child, when combined with irregular hours and absences from home at distant locations, would produce psychological stresses which could impair the proper performance of her flight duties. This is insufficient to defeat summary judgment because he fails to contrast the potential effect on performance with that of fathers, the critical issue in this case. Indeed, within the same paragraph, Dr. Lederer states that frequent absences from home and irregular work hours as experienced by Firemen and Salesmen contributed to unstable marriages. Therefore, it is not at all clear that his conclusions regarding effects on performance are gender-related.

Dr. Gullett's affidavit includes statements similar to those of Dr. Lederer and accordingly fails to defeat summary judgment for the same reasons. Mr. Crombie's deposition similarly fails to raise a genuine issue of material fact. H...