Following the enactment of Title VII of the Civil Rights Act in 1964 dealing with equal opportunity and employment discrimination, there arose a large body of case-law litigating Title VII issues and a large body of articles dissecting the cases and issues. Within this area, different methods for proving Title VII violations and different types of defenses developed. Almost inevitably, confusion arose concerning the applicability of specific defenses to specific types of Title VII violations. The Fourth Circuit Court of Appeals attempted to resolve some of this confusion in a sex discrimination case captioned Burwell v. Eastern Airlines, Inc. In Burwell, female flight attendants brought an action under section 703(a) of Title VII claiming that various aspects of Eastern's employment practices were discriminatory on the basis of sex. The two issues that survived for appellate review were Eastern's practice of divesting pregnant female flight attendants of accumulated seniority when they transferred to ground positions, and Eastern's policy requiring female flight attendants to take maternity leave immediately upon learning of their pregnancy. At Eastern, all temporarily disabled flight attendants could transfer to ground positions and continue to accumulate seniority. In practice, though, pregnant flight attendants who transferred to ground positions lost all rights to retain accumulated seniority. Eastern implemented this practice because it did not consider pregnancy a "disability" within the terms of its general transfer policy. The stewardesses charged that this transfer policy, although facially neutral, discriminatorily impacted upon them. The other relevant policy of Eastern required all female flight attendants to begin an unpaid maternity leave immediately upon knowledge of their pregnancy. All pregnant attendants were required to leave regardless of individual ability to continue working. The stewardesses claimed that this practice also discriminated against females. With respect to the transfer policy and the requirement to take maternity leave before the twenty-eighth week of pregnancy, the district court held the plaintiffs had made out a prima facie case of sex discrimination which Eastern could not justify as a business necessity or a bona fide occupational qualification (BFOQ). The district court did hold, however, that being less than twenty-eight weeks pregnant was a BFOQ for which Eastern could require flight attendants to cease flight duties. Eastern appealed this decision to the Fourth Circuit Court of Appeals. Based upon the Supreme Court decision in Nashville Gas Co. v. Satty, a unanimous court affirmed the district court's holding on the transfer policy issue. The circuit court divided on the mandatory maternity leave issue. Following the district court's separation of this issue into the three trimesters of pregnancy, the justices divided as follows: (1) a majority affirmed the district court's invalidation of Eastern's mandatory leave during the first thirteen weeks of pregnancy and three justices dissented; (2) a majority reversed the district court's invalidation of the maternity leave policy during the thirteenth through twenty-eighth weeks of pregnancy, with four dissenters; and (3) a unanimous court affirmed the district court's upholding of the mandatory leave after the twenty-eighth week of pregnancy. In reaching its decision, the circuit court in Burwell noted the confusion about which of two possible defenses-the bona fide occupational qualification (BFOQ) or the business necessity-should apply in a sex discrimination case. Focusing upon the type of theory used to prove the Title VII violation, the circuit court ruled: "In sex discrimination cases a clear disparate impact discrimination will be tested by business necessity and a clear disparate treatment discrimination will be tested by a BFOQ." The court then analyzed the issues before it in terms of disparate impact and the business necessity defense. Although the district court had also applied the business necessity defense, the circuit court differed in its application of the defense to the facts. This Comment will discuss the rule propounded in Burwell by analyzing the two theories for establishing Title VII discrimination and their respective defenses. As the discussion will show, this rule is generally adhered to by courts and has been assumed to be true by most commentators. In addition, this Comment takes the position that both the district court and the circuit court in Burwell failed to view Eastern's mandatory maternity leave policy within the terms of the proper legal theory. Instead of viewing the policy as a disparate impact issue, a disparate treatment analysis should have been used. Then, following its own rule, a BFOQ would be the allowable defense in Burwell. Under the BFOQ it is likely the circuit court would not have overturned the district court's holding on this issue. Finally, the district court's and the circuit court's applications of the business necessity defense will be examined. Both courts applied this defense but reached different results. The circuit court's method differed from the district court's method in two ways. The circuit court did not want to substitute a judicial judgment for business judgment in the area of risk management and passenger safety; deference was extended to Eastern's business judgment. In addition, the discriminatory impact upon the flight attendants was characterized as a loss of fifteen weeks of employment. Thus, Eastern's business purpose of enhancing passenger safety was found sufficiently compelling to override this impact discrimination.
Debra G. Archer,
Sex Discrimination: Theories and Defenses under Title VII and Burwell v. Eastern Airlines, Inc.,
W. Va. L. Rev.
Available at: https://researchrepository.wvu.edu/wvlr/vol83/iss3/13