                                                                                                                           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Precedential or Non-Precedential: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
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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
