Healey v. Southwood

Opinions of the United
1996 Decisions States Court of Appeals
for the Third Circuit
3-18-1996
Healey v. Southwood
Precedential or Non-Precedential:
Docket 95-3138
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Recommended Citation
"Healey v. Southwood" (1996). 1996 Decisions. Paper 218.
http://digitalcommons.law.villanova.edu/thirdcircuit_1996/218
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 95-3138
BRENDA L. HEALEY,
Appellant
v.
SOUTHWOOD PSYCHIATRIC HOSPITAL,
a Pennsylvania Corporation;
LAKEWOOD PSYCHIATRIC,
a Pennsylvania Corporation
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. No. 94-cv-00243)
Submitted Pursuant to Third Circuit LAR 34.1(a)
January 25, 1996
BEFORE: COWEN and SAROKIN, Circuit Judges and
POLLAK, District Judge*
(Filed March 18, l996)
Colleen E. Ramage
Ramage & Valles
429 Forbes Avenue
Allegheny Building, Suite 800
Pittsburgh, PA 15219-1604
COUNSEL FOR BRENDA L. HEALEY
Appellant
Margaret F. Houston
Houston Harbaugh
Two Chatham Center
*Honorable Louis H. Pollak, Senior United States District Judge
for the Eastern District of Pennsylvania, sitting by designation.
1
12th Floor
Pittsburgh, PA 15219
COUNSEL FOR SOUTHWOOD PSYCHIATRIC HOSPITAL,
a Pennsylvania Corporation
Appellee
LAKEWOOD PSYCHIATRIC,
a Pennsylvania Corporation
Appellee
OPINION
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
2
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
3
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,
4
Inc., 499 U.S. 187, 198-200, 111 S. Ct. 1196, 1203-04 (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
(1977). Here, Southwood's staffing policy is facially
discriminatory,1 rather than facially neutral. Analysis under
1
Judge Sarokin would describe Southwood's scheduling policy as
"facially gender-based" rather than "facially discriminatory" for
the following reason. Use of the term "discriminatory" connotes
that the policy is "characterized by or exhibiting prejudices,
racial bias, or the like," The Random House College Dictionary
379 (revised ed. 1980); it connotes intent. Because the court
concludes that Southwood's policy is motivated not by a
discriminatory intent but by a bona fide occupational
qualification, Judge Sarokin believes that referring to the
policy as "discriminatory" is inappropriate.
5
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 (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
6
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 (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[6][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
7
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 (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
(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 objective, empirical evidence, and common sense and
deference to experts in the field may be used. See id. (relying
on expert testimony, not statistical evidence, to determine BFOQ
defense); Torres v. Wisconsin Dep't Health and Social Servs., 859
F.2d 1523, 1531-32 (8th Cir. 1988)(in establishing a BFOQ
defense, defendants need not produce objective evidence, but
rather employer's action should be evaluated on basis of totality
of circumstances as contained in the record), cert. denied, 489
U.S. 1017, 109 S. Ct. 1133, and 489 U.S. 1082, 109 S. Ct. 1537
(1989). The employer must also demonstrate that it "could not
reasonably arrange job responsibilities in a way to minimize a
8
clash between the privacy interests of the [patients], and the
non-discriminatory principle of Title VII." Gunther v. Iowa State
Men's Reformatory, 612 F.2d 1079, 1086 (8th Cir.), cert. denied,
466 U.S. 966, 100 S. Ct. 2942 (1980). See Hardin v. Stynchcomb,
691 F.2d 1364, 1369 (11th Cir. 1982).
B.
With these precepts in mind, we may now turn to the
facts of this case. The "essence" of Southwood's business is to
treat emotionally disturbed and sexually abused adolescents and
children. Southwood has presented expert testimony that staffing
both males and females on all shifts is necessary to provide
therapeutic care. "Role modeling," including parental role
modeling, is an important element of the staff's job, and a male
is better able to serve as a male role model than a female and
vice versa. A balanced staff is also necessary because children
who have been sexually abused will disclose their problems more
easily to a member of a certain sex, depending on their sex and
the sex of the abuser. If members of both sexes are not on a
shift, Southwood's inability to provide basic therapeutic care
would hinder the "normal operation" of its "particular business."
Therefore, it is reasonably necessary to the normal operation of
Southwood to have at least one member of each sex available to
the patients at all times.
There is authority for the proposition that a business
that has as its "essence" a therapeutic mission requires the
consideration of gender in making employment decisions. In City
9
of Philadelphia v. Pennsylvania Human Relations Commission, 300
A.2d 97 (Pa. Commw. Ct. 1973), the court determined that gender
may be considered in order to treat and supervise children with
emotional and social problems, and approved the youth center's
gender-based staffing policy under the BFOQ defense. The City of
Philadelphia court stated that "[i]t is common sense that a young
girl with a sexual or emotional problem will usually approach
someone of her own sex, possibly her mother, seeking comfort and
answers." Id. at 103. Similarly, in Torres v. Wisconsin
Department of Health and Social Services, 859 F.2d 1523 (7th Cir.
1988), cert. denied, 489 U.S. 1017, 109 S. Ct. 1133, and 489 U.S.
1082, 109 S. Ct. 1537 (1989), the court determined that the
essence of a maximum security prison was rehabilitation. The
Torres court remanded the case to the district court for further
fact-finding based on expert opinion and common-sense
understanding of penal conditions in order to determine whether a
female-only staffing policy was necessary to the institution's
goal of rehabilitation. Still, the Torres court held that a
maximum security prison's policy of employing only female
corrections officers for the female inmates' living quarters
could be justified to achieve the institution's rehabilitative
mission. One of the reasons for the decision was the fact that a
high percentage of female inmates had been physically and
sexually abused by males. In this case, Southwood has
established a basis in fact through expert opinion that the
therapeutic aspects of the child care specialist job require the
consideration of gender.
10
In addition to therapeutic goals, privacy concerns
justify Southwood's discriminatory staffing policy. Southwood
established that adolescent patients have hygiene, menstrual, and
sexuality concerns which are discussed more freely with a staff
member of the same sex. Child patients often must be accompanied
to the bathroom, and sometimes must be bathed. The Supreme Court
has explicitly left open the question whether sex constitutes a
BFOQ when privacy interests are implicated, Johnson Controls,
Inc., 499 U.S. at 206 n.4, 111 S. Ct. 1207, and the issue has
been raised but not yet decided by our court. See Rider v.
Commonwealth of Pennsylvania, 850 F.2d 982 (3d Cir.), cert.
denied, 488 U.S. 993, 109 S. Ct. 556 (1988). We note that other
circuits have discussed privacy concerns as the basis of a BFOQ
defense. However, those cases involve an inmate's right to
privacy which is balanced against the state's legitimate
penological interest. See Nina Jordon v. Booth Gardner et. al.,
986 F.2d 1521, 1524 (9th Cir. 1993) ("prisoners' legitimate
expectations of bodily privacy from persons of the opposite sex
are extremely limited"); Kent v. Johnson, 821 F.2d 1220, 1226
(6th Cir. 1987) (balancing privacy interests of inmates with
state's interest in prison security); Gunther v. Iowa State Men's
Reformatory, 612 F.2d 1079, 1086 (8th Cir. 1980) (same).
In the non-prison context, other courts have held that
privacy concerns may justify a discriminatory employment policy.
See AFSCME v. Michigan Council 25, 635 F. Supp. 1010 (E.D. Mich.
1986) (privacy rights of mental health patients can justify a
BFOQ to provide for same-sex personal hygiene care); Fesel v.
11
Masonic Home of Delaware, 447 F. Supp. 1346, 1353 (D. Del. 1978)
(retirement home patients), aff'd mem., 591 F.2d 1334 (3d Cir.
1979); Backus v. Baptist Medical Center, 510 F. Supp. 1191 (E.D.
Ark. 1981) (essence of obstetrics nurse's business is to provide
sensitive care for patient's intimate and private concerns),
vacated as moot, 671 F.2d 1100 (8th Cir. 1982). Even in the
prison context, one court of appeals has held that privacy
concerns may be the basis for excluding male corrections officers
from female inmate living quarters. See Torres, 859 F.2d at 1531
("the presence of unrelated males in living spaces where intimate
bodily functions take place is a cause of stress to females").
We conclude that due to both therapeutic and privacy
concerns, Southwood is an institution in which the sexual
characteristics of the employee are crucial to the successful
performance of the job of child care specialist. Southwood
cannot rearrange job responsibilities in order to spare Healey or
another female from working the night shift because at least one
female and male should be available at all times in order for
Southwood to conduct its business. Accordingly, we hold that the
essence of Southwood's business would be impaired if it could not
staff at least one male and female child care specialist on each
shift.
Healey argues that Patrice Michalski's affidavit raises
a genuine doubt as to the legitimacy of Southwood's BFOQ defense,
and that the district court erred in weighing one expert's
testimony over another. We disagree. Michalski's affidavit
states that gender does not play a role in her staff's ability to
12
provide necessary care to her patients at Merck Multiple
Disabilities Program at the Western Psychiatric Institute. Merck
treats mentally retarded patients ranging from three to twenty-
four years old whose developmental age is lower than their
chronological age. Southwood's mission, in contrast, is to treat
emotionally disturbed and sexually abused children and
adolescents. Southwood's therapeutic mission depends on subtle
interactions such as "role modeling" rather than the more
concrete behavior modification techniques practiced at Merck.
Therefore, the "essence" of the two institutions' business
operations is different. Michalski's affidavit expresses no
opinion on the staffing policies at Southwood or another
institution like it which treats emotionally disturbed children
and adolescents.
Moreover, to the extent that the missions of the two
institutions overlap, such as when a Merck patient is "acting out
sexually," or has been sexually abused, Michalski states that the
gender of the staff will be considered in treating that patient.
We conclude that Michalski's affidavit is not relevant to the
central issue; namely, whether the essence of Southwood's
business would be undermined if it could not consider sex in its
staffing policy. Therefore, it does not create a disputed issue
of material fact.
Healey also argues that qualified health care
professionals are able to care for patients of either sex, and
therefore consideration of one's gender is not necessary. Healey
does not provide any expert opinion or other evidence to support
13
this assertion, and our independent review of the record finds
none. We acknowledge that Healey's assertion has some surface
appeal, and in most cases, men and women should be given the
opportunity to perform a job for which each is equally capable
and qualified. In fact, Title VII gives women the choice to take
jobs that historically had been restricted by an employer's
professed concern for women's health and well-being, which
actually were based on gender stereotypes. See, e.g., Johnson
Controls, 499 U.S. at 200, 111 S. Ct. at 1204. However, in some
limited instances, the continued vitality of a business operation
requires the employer to consider sex in its employment
decisions. Such is the case here.
The district court erred in placing the burden of proof
on Healey to establish that Southwood's BFOQ defense was
pretextual. Southwood has the burden of proof in establishing a
BFOQ defense. Id. The district court determined that Southwood
met its burden of production in presenting a BFOQ defense. We
recognize that the burden of production under the McDonnell
Douglas test is a lower standard than that required to establish
a BFOQ defense. Nevertheless, we will affirm the district
court's grant of summary judgment in the particular circumstances
of this case because Southwood has provided an overwhelming
"basis in fact" for its BFOQ defense, and Healey has presented no
evidence that creates a disputed issue of fact.
IV.
14
We conclude that Southwood has established a BFOQ which
justifies its discriminatory employment practice. Accordingly,
we will affirm the February 7, 1995, order of the district court
granting summary judgment in favor of Southwood Psychiatric
Hospital.
15