112 Yale L.J. 1257 (2003)
Title VII of the 1964 Civil Rights Act, as it has been interpreted by the courts, is an uncompromising statute. It bars adverse employment actions taken on the basis of race, color, religion, sex, and national origin, with only one exception: in cases where an employer can demonstrate that sex, religion, or national origin is a "bona fide occupational qualification [BFOQ] reasonably necessary to the normal operation of that particular business or enterprise." Much of Title VII's impact, of course, depends upon the scope given to this exception, and, in particular, upon whether employers are allowed to claim inconvenience, cost, or customer preference as legitimate components of the BFOQ analysis. Because a broad exception would swallow the rule, the Supreme Court has held that the BFOQ provision was "meant to be an extremely narrow exception to the general prohibition of discrimination" and established a stringent test for its application. An employer seeking a sex-based BFOQ must have a "'factual basis'" to believe that "'all or substantially all women [or men] would be unable to perform safely and efficiently the duties of the job involved,'" or, alternatively, demonstrate that the qualification in question relates to "the 'essence,' or to the 'central mission of the employer's business.'"
Courts have also strongly rejected attempts to define the "essence of a business" in ways that allow sex discrimination in through the back door of customer preference. The logic is the same as that justifying a narrow BFOQ: As one court put it, "[I]t would be totally anomalous if we were to allow the preferences and prejudices of the customers to determine whether the sex discrimination was valid. Indeed, it was, to a large extent, these very prejudices the Act was meant to overcome." Thus, courts have refused to allow the preferences of airline customers to justify rejection of men for flight attendant positions, or the biases of customers or associates in other countries to justify refusal to promote women to positions directing international operations.
To date, only a few kinds of sex-based BFOQs have been approved. The Supreme Court has authorized only one: In 1977, the Court granted a sex-based BFOQ to an Alabama maximum security prison, allowing it to exclude women from certain positions to ensure the safe administration of the prison. Lower courts and commentators have suggested that there may be many other kinds of BFOQs, including an "authenticity" BFOQ, which, for example, allows employers to hire only women for special undercover operations or theater productions, a "role model" BFOQ, and a BFOQ for rehabilitation purposes.
Sex-based BFOQs are of interest not only because they authorize acts that would otherwise be considered discriminatory, but because they are a key location where sexual difference is symbolized in the law. If the law "interpellates" us, or recruits us into identities and ideologies that it names for and as us, then sex-based BFOQs offer us a unique vantage point from which to understand how we are created as legal subjects of sex. This Note examines one sex-based BFOQ, which eclipses all others in terms of its legitimacy, persistence, and breadth: the same-sex privacy BFOQ, which allows employers explicitly to exclude men or women from certain positions or employment opportunities to protect the privacy interests of customers of the opposite sex. It excuses a wide variety of overtly sex-based employment actions, from the seemingly trivial--the refusal to assign women to clean men's bathrooms --to the relatively extreme--the refusal to hire qualified men to fill any of the nursing positions in labor and delivery rooms.
In 1991, the Supreme Court explicitly suggested that same-sex privacy could be the basis for a BFOQ, and both before and after that, lower courts have granted same-sex privacy BFOQs in a variety of contexts including labor and delivery rooms, mental hospitals, youth centers, washrooms, and nursing homes. Some courts have also granted same-sex privacy BFOQs in prisons, although many others have rejected them. Recently, employers have begun claiming--if not obtaining--BFOQ defenses in a variety of new settings, including weight-loss centers, health clubs, and spas.
This Note addresses same-sex privacy cases because in them Title VII's strong command to remake the world in favor of employment equity and at the expense of discriminatory customer preferences meets its limit. These cases are striking not only because they appear to be the strongest category of sex-based exceptions to Title VII, but also because they are deeply untheorized and impossible to square with Title VII's much-vaunted rejection of customer preference. As Robert Post has pointed out, same-sex privacy cases illustrate how "Title VII does not simply displace gender practices, but rather interacts with them in a selective manner," and they also "force[] us to ask which gender practices are to be reshaped by Title VII, in what contexts, and in what ways."
But how are we to know or decide which gender practices Title VII should challenge? This Note derives two teachings from same-sex privacy cases: first, that we must consider the symbolically as well as materially discriminatory effects of gender norms to decide which norms to challenge, and, second, that our inquiry must not end there. These cases make clear that costs attach not only to gender norms but also to their transformation. At times, courts will need to mediate between the discriminatory effects of a norm and the discriminatory effects of the attempt to change it. In such cases, I contend, effective resolution of this dilemma will usually not reside in sex segregation, but rather in non-sex-specific measures to alleviate the kinds of risks and costs we too quickly identify with sex itself.
Part II demonstrates that the same-sex privacy doctrine fails to meet the stringent requirements established for BFOQs. There is no evidence in most same-sex privacy cases that all or substantially all members of one sex cannot perform the essential functions of the job in question. In fact, same-sex privacy BFOQs are simply concessions to customer preference, and they undermine employment equity in just the way that courts usually have held Title VII opposes.
Courts in search of a principle that distinguishes the grounds of this BFOQ from forbidden customer preference typically turn to the law of privacy, but as Part III shows, this turn is too quickly made. Upon examination, it becomes clear that there are in many cases no relevant privacy rights at stake. Even in cases where there are privacy rights at stake, there is no logical reason to collapse privacy rights with sex and status as same-sex privacy doctrine does.
If same-sex privacy cases are really about customer preferences, and cannot be defended via recourse to legally recognized privacy rights, how can they be explained? Part IV contends that there are two interrelated justifications at work in these cases. First, courts insist that same-sex privacy norms are so deeply held and so fundamental to our sense of identity that they are legitimately cast beyond the reach of antidiscrimination law. Second, courts imply that same-sex privacy norms should be respected because they are necessary for the physical and psychological protection of individuals.
Part V asks whether either line of reasoning adequately justifies the exclusion of same-sex privacy norms from the set of gender norms that Title VII contests. It contends that they do not and that same-sex privacy doctrine is both materially and symbolically discriminatory. The claim of material discrimination is straightforward: The same-sex privacy BFOQ disadvantages women in the labor market because it facilitates the steering of women into low-status jobs. The notion of symbolic discrimination is less familiar, and one that I attempt to define against the background of these cases. Same-sex privacy cases, I argue, reinforce a symbolic order of gender that has a discriminatory effect upon women, because, for example, it casts them as constitutively vulnerable to sexualized attack, and as essentially and necessarily modest in a way that resonates with tendencies to propertize women and deny them sexual agency. These and the other symbolically discriminatory effects of the doctrine should concern us, and Title VII. These cases, however, suggest that it is not enough to ask which norms to challenge: We must also consider where and when to challenge them. Where changing gender norms will occasion costs such as the fear or risk of sexual abuse, we should take these costs seriously. Sex segregation, however, will rarely be the most effective way of avoiding these costs. Because of this, I conclude, same-sex privacy BFOQs should rarely, if ever, be judged legitimate.
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