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Healey v. Southwood Precedential or Non-Precedential: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

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University School of Law Digital Repository. It has been accepted for inclusion in 1996 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact [email protected]. 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

, and we exercise appellate jurisdiction pursuant to

. "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.,

(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,

(7th Cir. 1992)

(distinguishing between a facially discriminatory employment

policy and a "pretextual" disparate treatment case); In re Pan

American World Airways, Inc.,

, 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.,

,

(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.,

(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,

,

(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,

(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,

,

(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,

(7th Cir. 1992)(noting

distinction between "facial" disparate treatment cases and

"pretextual" disparate treatment cases); In re Pan American World

Airways, Inc.,

, 1460 (11th Cir. 1990) (same);

Chambers v. Omaha Girls Club, Inc.,

, 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[.]"

(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,

,

(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,

,

. 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."

,

. 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,

,

(1977)

(quoting Diaz v. Pan American World Airways, Inc.,

(5th Cir.), cert. denied,

,

(1971)).

The employer has the burden of establishing the BFOQ

defense. Johnson Controls,

,

.

The employer must have a "basis in fact" for its belief that no

members of one sex could perform the job in question. Dothard,

,

. However, appraisals need not

be based on objective, empirical evidence, and common sense and

deference to experts in the field may be used. See

(relying

on expert testimony, not statistical evidence, to determine BFOQ

defense); Torres v. Wisconsin Dep't Health and Social Servs.,

(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,

,

, and

,

(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,

, 1086 (8th Cir.), cert. denied,

,

(1980). See Hardin v. Stynchcomb,

(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,

(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."

. Similarly, in Torres v. Wisconsin

Department of Health and Social Services,

(7th Cir.

1988), cert. denied,

,

, and

,

(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.,

n.4,

, and the issue has

been raised but not yet decided by our court. See Rider v.

Commonwealth of Pennsylvania,

(3d Cir.), cert.

denied,

,

(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.,

(9th Cir. 1993) ("prisoners' legitimate

expectations of bodily privacy from persons of the opposite sex

are extremely limited"); Kent v. Johnson,

(6th Cir. 1987) (balancing privacy interests of inmates with

state's interest in prison security); Gunther v. Iowa State Men's

Reformatory,

, 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,

(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,

(D. Del. 1978)

(retirement home patients), aff'd mem.,

(3d Cir.

1979); Backus v. Baptist Medical Center,

(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,

(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,

("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,

,

. 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.

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