Hayes v. Shelby Memorial Hosp.

• Decision Date: 16 March 1984
• Docket Number: No. 82-7296,82-7296
• Citation: 726 F.2d 1543
• Parties: 34 Fair Empl.Prac.Cas. 444, 33 Empl. Prac. Dec. P 34,219 Sylvia HAYES, Plaintiff-Appellee, v. SHELBY MEMORIAL HOSPITAL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1543

726 F.2d 1543

34 Fair Empl.Prac.Cas. 444,

33 Empl. Prac. Dec. P 34,219

Sylvia HAYES, Plaintiff-Appellee, v. SHELBY MEMORIAL HOSPITAL, Defendant-Appellant.

No. 82-7296.

United States Court of Appeals, Eleventh Circuit.

March 16, 1984.

Carl E. Johnson, Jr., Birmingham, Ala., for defendant-appellant.

J. Terrell McElheny, Susan D. Doughton, Birmingham, Ala., for plaintiff-appellee.

Justine S. Lisser, Washington, D.C., for amicus curiae (EEOC).

Joan E. Bertin, American Civil Liberties Union Foundation, New York City, for amicus curiae (American Civil Liberties Union, et al.).

Appeal from the United States District Court for the Northern District of Alabama.

Before JOHNSON and ANDERSON, Circuit Judges, and TUTTLE, Senior Circuit Judge.

TUTTLE, Senior Circuit Judge:

Historically, an effective means for employers, legislatures, and courts to limit the equal employment opportunities of women was to restrict their employment out of a professed concern for the health of women and their offspring. See, e.g., Muller v. Oregon, 208 U.S. 412, 28 S.Ct. 324, 52 L.Ed. 551 (1908). ¹ In this appeal we are asked to

determine whether a hospital can fire an x-ray technician when she becomes pregnant to protect the pregnant employee's fetus from potentially harmful radiation, and to protect the hospital's finances from potential litigation. We affirm the district court's finding that under the circumstances of this case Shelby Memorial Hospital violated the Pregnancy Discrimination Act of 1978 when it fired Sylvia Hayes from her position as an x-ray technician immediately upon learning of Hayes's pregnancy.

I. BACKGROUND

On August 11, 1980, Shelby Memorial Hospital (the "Hospital") hired Sylvia Hayes, a certified x-ray technician, to work the 3-11 p.m. shift with one other technician in the Hospital's radiology department. Two months later, Hayes was fired after she informed her supervisor that she was pregnant. The supervisor fired Hayes after consulting Dr. Cecil Eiland, the Hospital's then recently appointed radiology department medical director and radiation safety director, who recommended that Hayes be removed from all areas in which ionizing radiation was being used. The Hospital claims that it fired Hayes because it was unable to find alternative employment for her.

Following her dismissal from the Hospital, Hayes filed suit in the United States District Court for the Northern District of Alabama, charging that the Hospital had denied Hayes her equal employment opportunities as guaranteed by Title VII of the 1964 Civil Rights Act, 42 U.S.C. Sec. 2000e et seq., as well as her constitutional and civil rights guaranteed under 42 U.S.C. Sec. 1983. The Hospital defended its dismissal of Hayes on the grounds, among others, of "business necessity" and "bona fide occupational qualification." Following a nonjury trial the district court concluded that the Hospital's "abrupt termination" of Hayes violated both Title VII and Sec. 1983. The district court awarded Hayes modest damages totalling less than $8,000.00, and entered final judgment on the award, from which the Hospital took this appeal.

II. DISCUSSION

This is a case of first impression in the Eleventh Circuit, and one of only a few cases of this nature to reach a court of appeals. ² The issues raised by this case are (1) What is the proper legal framework for analyzing a case in which an employer fires a pregnant woman because of the employer's belief that the woman's continued employment presents a substantial hazard to her fetus? (2) Does an employer's desire to avoid or minimize potential liability for fetal exposure to radiation constitute an affirmative defense to a Pregnancy Discrimination Act claim? (3) Did the Hospital meet its burden of proving an affirmative defense to its discriminatory policy?

A. The Legal Framework

We start our analysis with Title VII and the Pregnancy Discrimination Act, 42 U.S.C. Sec. 2000e(k). Prior to passage of the Pregnancy Discrimination Act, the Supreme Court had held in General Electric Co. v. Gilbert, 429 U.S. 125, 97 S.Ct. 401, 50 L.Ed.2d 343 (1976), that Congress did not There are three theories under which a suit of this nature may be analyzed. ³ The first applies to those situations in which an employer has engaged in "facial" discrimination. Facial discrimination occurs when an employer adopts a policy that explicitly treats some employees differently from others on the basis of race, religion, national origin, or gender (pregnancy). The only affirmative defense to facial discrimination is the existence of a bona fide occupational qualification (BFOQ), by which an employer may establish that religion, sex, or national origin (but not race) is, in the words of Title VII, a "bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise." 42 U.S.C. Sec. 2000e-2(e). The second theory applies when an employer adopts what appears to be a facially neutral policy, but one which a plaintiff contends is a "pretext" for forbidden discrimination. Both facial discrimination and pretext cases are referred to as "disparate treatment" cases.

                include discrimination on the basis of pregnancy within Title VII's definition of gender based discrimination.  By adopting the Pregnancy Discrimination Act in 1978 as an amendment to Title VII, Congress in effect overruled Gilbert.    Under the Pregnancy Discrimination Act, discrimination on the basis of pregnancy is discrimination on the basis of sex.  Thus, our analysis of this case must follow the same type of analysis used in any other Title VII sex discrimination suit
                

The third theory applies when the employee concedes that the employer's policy is neutral, but seeks to demonstrate that the policy has a disproportionate impact on a group protected from discrimination under Title VII. Those cases are labelled "disparate impact" cases. An affirmative defense to a prima facie case of disparate impact is "business necessity," which is a broader defense than BFOQ.

We analyze this case under all three theories.

B. Analysis

1. The Pretext Theory

Initially, the Hospital argues that we should analyze this case under the pretext theory as set forth in Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). Under Burdine, an employer may "articulate" a "legitimate nondiscriminatory reason" to rebut an employee's prima facie case of discrimination as made out under the requirements of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). The employee must then show that the employer's nondiscriminatory reason is a "pretext" for discrimination. The Hospital argues that its stated reason for firing Hayes--to protect her fetus from the harmful effects of radiation--is a sufficient nondiscriminatory reason to shift the burden back to Hayes to prove pretext. The Hospital then argues that Hayes failed to prove that its reasons for firing her were a pretext for discrimination.

Prior to passage of the Pregnancy Discrimination Act, the Hospital's Burdine argument might have had some merit, ⁴ because pregnancy was considered a legitimate, nondiscriminatory basis for differential treatment. See Nashville Gas Co. v. Satty, 434 U.S. 136, 98 S.Ct. 347, 54 L.Ed.2d 356 (1977); General Electric Co. v. Gilbert, 429 U.S. 125, 97 S.Ct. 401, 50 L.Ed.2d 343 (1976). That is no longer the case, however, because the Pregnancy Discrimination Act mandates that a pregnancy-based rule can never be "neutral." ⁵ In other words, firing

Hayes because she was pregnant is just as facially discriminatory under the Pregnancy Discrimination Act as it would be to fire her solely because she was black under Title VII. Therefore, Burdine is inappropriate here, since the Hospital admits that Hayes was fired because of her pregnancy, rather than because of some other, potentially non-discriminatory reason. ⁶

2. Facial Discrimination

Plaintiff, supported by amici curiae American Civil Liberties Union Foundation Women's Rights Project, et al., ⁷ contends that this is a case of facial discrimination, to which the only affirmative defense is BFOQ. Although we tend to agree that this is a facial discrimination case, to ensure complete fairness to the Hospital, we will also analyze this case under the disparate impact/business necessity theory.

First, we must establish an analytic framework. We begin by establishing a presumption that if the employer's policy by its terms applies only to women or pregnant women, then the policy is facially discriminatory. That presumption may be rebutted, however, if the employer can show that although its policy applies only to women, the policy is neutral in the sense that it effectively and equally protects the offspring of all employees. In other words, the employer must show (1) that there is a substantial risk of harm to the fetus or potential offspring of women employees from the women's exposure, either during pregnancy or while fertile, to toxic hazards in the workplace, and (2) that the hazard applies to fertile or pregnant women, but not to men. ⁸

The burden of proving a substantial risk of harm to the fetus is a threshold requirement. "This burden may not be carried by proof alone that the employer subjectively and in good faith believed its program to be necessary and effective for the purpose." Wright v. Olin Corp., 697 F.2d at 1196. Rather, the employer must produce objective evidence of an essentially scientific nature supported by the opinion evidence of qualified experts in the relevant scientific fields. Id. The employer need not prove the existence of a general consensus on the points within the qualified scientific community. Id. at 1191. Rather, the employer carries its burden by showing that the body of opinion believing that significant risk exists is so considerable "that an informed employer could not responsibly fail to...