The court will most likely view both parties as having grounds for their arguments, Wyman & Rights discriminative hiring practices are guided by the fact that it deals with women litigations ONLY which is not unlawful based on BFOQ clause 703 (e) that states, “it shall not be unlawful employment practice for an employer to hire and employ employees… on the basis of his or her sex…in those certain instance where…sex…is a bona fide occupational qualification reasonably necessary to the normal operation of that business or enterprise.
” However, going by section 703(a) (1) of the Title VII the court may rule the case in favor of Joe, as was in UAW v. Johnson Contraction, Inc. , the court found Johnson’s policy of barring women except those whose fertility was medically documented from doing in lead emitting sections of the firms’ battery manufacturing. This was based on the “essence of the business” that led to the conclusion that sex was not a BFOQ reasonably necessary to the normal operation of the particular business. Joe’s case is prototype to City of Los Angeles v.
Manhart where the Los Angeles Department of Water and Power passed a policy that required women workers to make larger contributions to its pension scheme because research indicated that women tend to live longer than men; further, it (Department pension scheme) argued that the policy was pegged on longevity rather than sex. Their argument was found to be immaterial by the Court; the judges asserted that, “they found no other factor other than sex” and therefore concluded that the Department pension scheme policy was in contravention of 703(a) (1) of the Title VII.
On the other hand, an interpretation of Dothard v. Rawlinson case that was based on sexual discrimination indicates that Joe v. Wyman & Rights could be ruled in favor of Joe. In that case, the plaintiff’s (Rawlinson – a woman) application for the post of a “correctional counselor” (prison guard) in Alabama was rejected based on Alabama statutes which restricted potential applicants to be over 5 feet 2 inches in height and 120 pounds.
In the ruling the court challenged the regulation as not permissive under Title VII and that it was based on stereotyped characterizations of sex, and, rejected appellants “bona fide occupational qualification” defense which was based under section 703(e) of Title VII, and argued that in pursuant to section 7003(a) (1) (2) being a male was not a BFOQ for the job of a ‘correctional counselor’. In regards to Diaz v.
Pan Am (Diaz Test), the Court in pursuant to section 7003(a) (1) faulted what it deemed as customer preferences; “that customer preferences did not outweigh the non-discriminatory objective”. Pan Am Airlines had declined hiring Diaz, (a man) on grounds that only women were best suited for the post of in-flight attendance as they were better placed to perform non-mechanical tasks better than men. This is what the court argued in conclusion,
“The primary function of the airline is to transport of passengers from one to place to another. While a pleasant environment, enhanced by obvious cosmetic effect that female stewardesses provide as well as… their apparent ability to perform the non-mechanical functions of the job in a more effective manner than most men, may all be important, they are tangential to the essence of the business involved.
No one has suggested that having male stewards will so seriously affect the operation of an airline as to jeopardize or even minimize its ability to provide safe transportation from one place to another. ” NB: this case is very similar to Joe’s case, since just as Pan Am argued, Wyman & Rights law firm seems to base its arguments on the same (customer preferences).