LAURA KELLEN, Complainant,

VS.

CITY OF ALTON (PARKS DEPT.), MAYOR, CITY COUNCIL (ALTON), and CITY OF ALTON PARK BOARD, Respondents.

 

CONCLUSIONS OF LAW

1. The complaint was timely filed, processed and the issues in the complaint are properly before the Hearing Officer and ultimately before the Commission.

2. City of Alton (Parks Dept.), City of Alton, Mayor and City Council and Park Board, City of Alton are "employers" and "persons" as defined in Iowa Code section 601A.2(2) and 601A.2(5), and are therefore subject to Iowa Code section 601A.6 and do not fall under any of the exceptions of section 601A.6(5).


3. The applicable statutory provision is as follows:

a. Person to refuse to hire, accept, register, classify, or refer for employment.... or to otherwise discriminate in employment against any applicant for employment ... because of the ... sex ... such applicant ... unless based upon the nature of the occupation...

* * *

4. The issue in this case is whether or not male sex was a bona fide occupational qualification (BFOQ) for the position of lifeguard at the City of Alton swimming pool in the summer of 1983. Respondents claim that the primary reason for hiring Kevin Punt instead of Laura Kellen was because they wanted a male to handle the alleged problems in the boys' shower facility. The City Council only considered the names submitted by the Park Board, not the qualifications of the applicants. It was admittedly a "rubber stamp" approval. The Park Board selected the applicants on the basis of two criteria: 1) if they worked the prior summer and applied, they were hired; and, 2) if the applicant was male. They did not compare the qualifications of Punt (male) and Kellen (female). If they had hired the most qualified, they would have hired Kellen. She already had the required WSI, Punt said he was planning to get his. Kellen had 2 years prior substitute lifeguard and teaching experience, Punt only one. Krogman, a Park Board member, also stated that he knew Punt, but not Kellen and that might have been one of the reasons. Krogman is a male. Krogman was not, however, familiar with either applicant's job qualifications. The only issue remaining, therefore; is whether or not male sex was a BFOQ for the remaining position of lifeguard.

5. Proof of a BFOQ requires a showing that all or substantially all members of the excluded group will be unable safely and efficiently to perform the duties of the position, or that it is impossible or impractical to consider the persons on an individualized basis. 45B Am.Jur.2d Job Discrimination, §2019, at 469 (1986).

6. The burden of proving a BFOQ defense rests on the respondent who asserts it. ID at 471.

7. Discrimination on the basis of sex is permitted in certain instances where sex is a bona fide occupational qualification .reasonably necessary to the normal operation of that particular business or enterprise," 42 U.S.C. §2000e-2(e).

8. It is generally agreed that a BFOQ is an "extremely, narrow exception to the general prohibition of discrimination." Dothard v. Rawlinson, 433 U.S. 321, IS FEP10 (1977) In Dothard, the U.S. Supreme Court ruled that the use of women as guards in "contact" positions under the existing conditions of the Alabama maximum security male penitentiaries would pose a substantial security problem and, therefore, being a male was a BFOQ. This was based on the peculiarly inhospitable environment for either sex and characterized as a "jungle atmosphere." The Courts have not been willing to extend Dothard to prisons other than those in Alabama.

9. In Gunther v. Iowa State Men's Reformatory, 462 F. Supp. 952, 955, 18 FEP 1454, 1455-56 (N.D. Iowa 1979) aff'd., 612 F.2d 1079, 21 FEP 1031 (8th Cir.), cert denied, 446 U.S. 966 (1980), the Eighth Circuit agreed with the district court's analysis using a balancing test between equality of treatment and individual evaluation of capabilities versus the requirements of public safety. In Gunther, the court declined to permit a BFOQ defense on the right to privacy since many job duties could be performed without infringing upon inmate privacy.

10. In Jatczak v. Ochburg, 540 F. Supp. 698, 28 FEP 1773 (E.D. MICH. 1982), male gender was ruled not a BFOQ for position of child care worker in a sheltered workshop for mentally ill young adults. Gender was not found to be relevant to the essential purpose of the job of teaching work skills and work behavior.

11. In the earlier case, Diaz v. Pan American World Airways, 442 F. 2d 385, 388, 3 FEP 337, 339 CERT. Denied, 404 U.S. 950 (197 1), the Court ruled that "discrimination based on sex is valid only when the essence of the business operation would be undermined by not hiring members of one sex exclusively." (Emphasis in original)

12. In Hardin v. Stynchcomb, 691 F.2d 1364, 30 FEP 624, rehearing denied, 696 F.2d 1007 (1 Ith CIR. 1982), the Eleventh Circuit ruled the same, sex was not a BFOQ entry-level deputy positions again using the essence of the business test.

13. In a case where Respondent pleads a BFOQ defense, a prima facie case of discrimination is established and it becomes the Respondent's burden to show that the sex-based requirement is a business necessity. In the case at issue, Respondent's reasons for using the BFOQ defense were given as follows:

The Respondents concluded that hiring a male lifeguard would resolve all of these problems.

14. In Tollakson vs. United Community Schools, CP# 3066, ICRC CASE REPORTS, 1977-78, the Iowa Civil Rights Commission upheld its earlier decision in Sullivan v. McCoy-Stampfer's Inc., CP#'s 2690 and 2693, November 21, 1977, where it adopted the following definition of business necessity:

The applicable test is not merely whether there exists a business purpose for adhering to a challenged practice; the test is whether there exists an over riding legitimate business purpose such that the practice is necessary to the safe and efficient operation of the business. Thus, the business purpose must be sufficiently compelling to override any discriminatory impact: the challenged practice must effectively carry out the business purpose it is alleged to serve; and there must be available no acceptable alternative policies or practices which would better accomplish the business purpose advanced, or accomplish it equally well with a less differential impact on affected classes.

15. In Polk County Juvenile Home v. ICRC, 322 N.W. 2d 913 (Iowa Ct. App. 1962), the Court affirmed the Commission's decision in that there was not substantial evidence that a male sex BFOQ exception was applicable for the position of child care worker with boys at the county juvenile home. In that case there were 13 positions and it was concluded that 5 could be male and 5 female. Furthermore, since the position included supervising residents in showers, a limited number of "male only" and "female only" positions were justified to protect the privacy interests of the residents. It was, therefore, concluded that the remaining 3 positions could have been filled with either sex without sacrificing administrative efficiency, internal security, or safety and without infringing upon the residents privacy interests. The Court concluded that since the bona fide occupational qualification exception is contrary to the premise of the state Civil Rights Act, it must be strictly construed and to justify the exception there must be no less restrictive alternative reasonably available to the employer.


16. 161 Iowa Admin. Code §8.47, provides as follows:

The bona fide occupational qualification exception as to sex is strictly and narrowly construed. Labels - "men's jobs" and "women's jobs" - tend to unnecessarily deny employment opportunities to one sex or the other.

17. The claim that no further complaints were received after hiring a male is not relevant to the BFOQ issue. If an employer hired a white male in preference to a more qualified black male, would it make any difference if the white male then did a good job? The discriminatory act still occurred.

18. The argument that the female lifeguards were uncomfortable with monitoring the problems in the boys' shower room is not well founded. The fact is that one Park Board member had the *impression" that Eason, one female lifeguard, was uncomfortable with the monitoring situation. Other testimony indicated that she did, in fact, perform those duties as head lifeguard. The other fact is that Kellen was not asked whether or not she was uncomfortable with the monitoring situation or even if she had experience in handling the problems. In fact, she testified that she did not consider such monitoring a major concern. To assume that all females would be uncomfortable monitoring behavior in the boys' shower room is unacceptable paternalism and is not a basis for a BFOQ.

19. The burden of proving that all or substantially all females would be unable safely and efficiently to perform the duties of the position has not been met. The facts show that an all female staff had performed the duties of the job for the past several years.

20. As in Gunter, the BFOQ defense is not permitted on the right to privacy in this case. The duties of lifeguard at the Alton pool essentially involve the safety of the swimmers in and around the pool and teaching swimming skills. The major concern on discipline according to the rules was not allowing smoking. The occasional "horseplay" in the showers was a minor part of the duties of lifeguards. Females could perform the majority of the required duties. Kellen was qualified for the job and had experience in controlling the occasional "horseplay" in the boys' shower area.

It is also noted that the pool manager's duties specifically included taking care of the restrooms. The pool manager was male. It is further noted that two of the substitute lifeguards were male and that there was no specific order in winch the substitutes were called in. They could have been used in the times of most probability for problems. The fact is that the Park Board had not even studied when the problems occurred to determine such needs. Gender is not considered a BFOQ for the essential purpose of the job of teaching swimming and acting as lifeguard at the City pool.

21. Was there an overriding legitimate business purpose such that hiring a male was necessary to the safe and efficient operation of the pool? A reason sufficiently compelling to override any discriminatory impact? The City had not been sued for violation of right to privacy or injury to the smaller boys. The City had not been threatened to be sued for violation of right to privacy or injury to the smaller boys. The fact is that there hadn't even been any complaints that female guards entered the shower facilities. Even granted a legitimate concern for the problems occurring in the boys' shower area, to prove a BFOQ there must be available no acceptable alternative policies or practices winch would better accomplish the business purpose or accomplish it equally well with a less differential impact on affected classes, in this case females. It is concluded that there were acceptable alternatives. There could have been rules controlling the kind of problems which occurred in the boys' restroom. There could have been provisions for prohibiting boys from being admitted if the problems recurred. The pool manager, the City Clerk, and the lifeguards knew who the boys were who were causing the problems. The parents could have been informed of the unacceptable behavior. The pool manager could have scheduled himself to be present during the times the problems usually occurred or the Park Board could have ordered him to be present during those times. The female lifeguards could have been given more guidance and support in how to control the problems when they occurred. The Park Board made no attempt to identify the specifies of the problem or resolve the problem in any way except to decide that a male lifeguard was necessary. Even that decision was tentative in that if Punt had not succeeded in getting his WSI, they would have hired Kellen, a female.

It is concluded that Respondents have failed to prove their BFOQ defense.

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