Healey v. Southwood Psychiatric Hosp.

Decision Date25 January 1996
Docket NumberNo. 95-3138,95-3138
Parties70 Fair Empl.Prac.Cas. (BNA) 439, 64 USLW 2644 Brenda L. HEALEY, Appellant, v. SOUTHWOOD PSYCHIATRIC HOSPITAL, a Pennsylvania Corporation; Lakewood Psychiatric, a Pennsylvania Corporation. . Submitted Pursuant to Third Circuit LAR 34.1(a)
CourtU.S. Court of Appeals — Third Circuit

On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. No. 94-cv-00243); Barron P. McCune, Judge.

Colleen E. Ramage, Ramage & Valles, Pittsburgh, PA, for Brenda L. Healey.

Margaret F. Houston, Houston Harbaugh, Pittsburgh, PA, for Southwood Psychiatric Hospital and Lakewood Psychiatric.

Before: COWEN and SAROKIN, Circuit Judges and POLLAK, District Judge. *

OPINION OF THE COURT

COWEN, Circuit Judge.

Brenda L. Healey appeals the order of the district court granting Southwood Psychiatric Hospital's motion for summary judgment on her sex discrimination claim brought under Title VII of the Civil Rights Act of 1964, codified as amended at 42 U.S.C. § 2000e et. seq. Because we find that Southwood has established a bona-fide occupational qualification defense to Healey's Title VII claim, we will affirm the order of the district court.

I.

The following facts are not substantially disputed. Healey was hired as a child care specialist at Southwood in October 1987. In this capacity, she was responsible for developing and maintaining a therapeutic environment for the children and adolescents hospitalized at Southwood. Southwood's patients are emotionally disturbed, and some have been sexually abused. In November 1992, Healey was assigned to the night shift at Southwood as a result of a staff reorganization. The reorganization was necessitated by reason of a decline in the patient population. The night shift is a less desirable shift, requiring more housekeeping chores and less patient interaction and responsibility.

Southwood has a policy of scheduling both males and females to all shifts, and considers sex in making its assignments. In November 1992, Southwood assigned Healey to the night shift because it needed a female child care specialist on that shift. Southwood maintains that its gender-based policy is necessary to meet the therapeutic needs and privacy concerns of its mixed-sex patient population. Healey counters that gender should not play any role in the hiring and scheduling of employees, and Southwood's actions towards her constitute sex discrimination in violation of Title VII. The district court granted Southwood's motion for summary judgment from which Healey appeals.

II.

The district court had jurisdiction under 28 U.S.C. § 1331, and we exercise appellate jurisdiction pursuant to 28 U.S.C. § 1291. "When reviewing an order granting summary judgment we exercise plenary review and apply the same test the district court should have applied." Armbruster v. Unisys Corp., 32 F.3d 768, 777 (3d Cir.1994). Under Federal Rule of Civil Procedure 56(c), that test is whether there is a genuine issue of material fact and, if not, whether the moving party is entitled to judgment as a matter of law. In so deciding, the court must view the facts in a light most favorable to the nonmoving party and draw all reasonable inferences in that party's favor. Fed.R.Civ.P. 56(c).

III.
A.

In bringing a Title VII sex-discrimination claim, two different theories of liability are available to the plaintiff: disparate treatment and disparate impact. The disparate treatment theory can be further subdivided into two subtheories: facial discrimination and pretextual discrimination. See Reidt v. County of Trempealeau, 975 F.2d 1336, 1341 (7th Cir.1992) (distinguishing between a facially discriminatory employment policy and a "pretextual" disparate treatment case); In re Pan American World Airways, Inc., 905 F.2d 1457, 1460 (11th Cir.1990); see generally, RODNEY A. SMOLLA, FEDERAL CIVIL RIGHTS ACTS, § 9.03 (3d ed. 1995). A different affirmative defense may be offered to counter each of these theories of liability. In a disparate treatment case, the defendant's affirmative defense is that its policy, practice, or action is based on a "Bona-Fide Occupational Qualification," ("BFOQ"). In a disparate impact case, on the other hand, the appropriate defense is that of business necessity. See International Union, United Auto., Aerospace & Agric. Implement Workers, UAW v. Johnson Controls, Inc., 499 U.S. 187, 198-200, 111 S.Ct. 1196, 1203-04, 113 L.Ed.2d 158 (1991) (noting different applications of BFOQ and business necessity defenses and holding that BFOQ defense, not the business necessity defense, is appropriate standard for disparate treatment cases); see also Grant v. General Motors Corp., 908 F.2d 1303, 1307 (6th Cir.1990) ("overt discrimination and the statutorily-defined BFOQ defense must be analytically distinguished from Griggs-type disparate impact and the accompanying judicially-created business necessity defense").

The district court did not address Healey's disparate impact claim in dismissing her complaint. Healey argues both disparate treatment and disparate impact theories are applicable to her case. We disagree that disparate impact is applicable. Southwood uses sex as an explicit factor in assigning its staff to the various shifts, and Healey was assigned to the night shift because of her sex. Under a disparate impact theory, liability is established when a facially neutral policy affects members of a protected class in a significantly discriminatory manner. Dothard v. Rawlinson, 433 U.S. 321, 329, 97 S.Ct. 2720, 2726-27, 53 L.Ed.2d 786 (1977). Here, Southwood's staffing policy is facially discriminatory, 1 rather than facially neutral. Analysis under disparate impact is not appropriate where plaintiff claims injury based on a facially discriminatory policy. Reidt v. County of Trempealeau, 975 F.2d 1336, 1340 (7th Cir.1992). Therefore, since this case involves a facially discriminatory employment policy, not a facially neutral one, disparate impact is not appropriate to this case.

On Healey's disparate treatment claim, the district court applied the shifting burdens of proof under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and concluded that Healey had failed to establish that Southwood's BFOQ defense was pretextual. However, Southwood's gender-based policy is not a pretext for discrimination--it is per se intentional discrimination. This type of disparate treatment case should be distinguished from the more typical disparate treatment case, pretextual discrimination, where the familiar procedure set forth in McDonnell Douglas is appropriate. The McDonnell Douglas test is inapt in this case which involves a facially discriminatory policy. See Reidt v. County of Trempealeau, 975 F.2d 1336, 1341 (7th Cir.1992)(noting distinction between "facial" disparate treatment cases and "pretextual" disparate treatment cases); In re Pan American World Airways, Inc., 905 F.2d 1457, 1460 (11th Cir.1990) (same); Chambers v. Omaha Girls Club, Inc., 834 F.2d 697, 704 n. 18 (8th Cir.1987) (per se intentional discrimination eliminates the McDonnell Douglas burden-shifting procedure).

Without using the McDonnell Douglas shifting burdens of proof, Healey may still establish sex discrimination under Title VII. In fact, Healey has shown sex discrimination by establishing the existence of a facially discriminatory employment policy. Title VII expressly states that "[it] shall be an unlawful employment practice for an employer ... to discriminate against any individual with respect to [her] compensation, terms, conditions, or privileges of employment, because of such individual's ... sex[.]" 42 U.S.C. § 2000(e). Thus, Title VII sets forth a sweeping prohibition against overt gender-based discrimination in the workplace. See, e.g., City of Los Angeles Dep't of Water and Power v. Manhart, 435 U.S. 702, 98 S.Ct. 1370, 55 L.Ed.2d 657 (1978). When open and explicit use of gender is employed, as is the case here, the systematic discrimination is in effect "admitted" by the employer, and the case will turn on whether such overt disparate treatment is for some reason justified under Title VII. See RODNEY A. SMOLLA, supra, at § 9.03[a]. A justification for overt discrimination may exist if the disparate treatment is part of a legally permissible affirmative action program, or based on a BFOQ. Id.

Southwood asserts that its gender-based staffing policy is justified as a bona fide occupational qualification, and therefore is exempt under Title VII. Under the BFOQ defense, overt gender-based discrimination can be countenanced if sex "is a bona fide occupational qualification reasonably necessary to the normal operation of [a] particular business or enterprise[.]" 42 U.S.C. § 2000e-2(e)(1). The BFOQ defense is written narrowly, and the Supreme Court has read it narrowly. See Johnson Controls, 499 U.S. at 201, 111 S.Ct. at 1204. The Supreme Court has interpreted this provision to mean that discrimination is permissible only if those aspects of a job that allegedly require discrimination fall within the " 'essence' of the particular business." Id. at 206, 111 S.Ct. at 1207. Alternatively, the Supreme Court has stated that sex discrimination "is valid only when the essence of the business operation would be undermined" if the business eliminated its discriminatory policy. Dothard v. Rawlinson, 433 U.S. 321, 332, 97 S.Ct. 2720, 2729, 53 L.Ed.2d 786 (1977) (quoting Diaz v. Pan American World Airways, Inc., 442 F.2d 385, 388 (5th Cir.), cert. denied, 404 U.S. 950, 92 S.Ct. 275, 30 L.Ed.2d 267 (1971)).

The employer has the burden of establishing the BFOQ defense. Johnson Controls, 499 U.S. at 200, 111 S.Ct. at 1204. The employer must have a "basis in fact" for its belief that no members of one sex could perform the job in question. Dothard, 433 U.S. at 335, 97 S.Ct. at 2730. However, appraisals need not be based on...

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