DOTHARD v. RAWLINSON, 433 U.S. 321 (1977) 97 S.Ct. 2720
DOTHARD, DIRECTOR, DEPARTMENT OF PUBLIC SAFETY OF ALABAMA, ET AL v. RAWLINSON ET AL.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA
No. 76-422.
Argued April 19, 1977
Decided June 27, 1977
After her application for employment as a "correctional counselor"
(prisonguard) in Alabama was rejected because she failed to meet the
minimum 120-pound weight requirement of an Alabama statute, which also
establishes a height minimum of 5 feet 2 inches, appellee Rawlinson
(hereafter appellee) filed a charge with the Equal Employment
Opportunity Commission and ultimately brought a class action against
appellant corrections officials challenging the statutory height and
weight requirements and a regulation establishing gender criteria for
assigning correctional counselors to "contact" positions (positions
requiring close physical proximity to inmates) as violative of Title
VII of the Civil Rights Act of 1964, inter alia. A three-judge District
Court decided in appellee's favor. On the basis of national statistics
as to the comparative height and weight of men and women indicating
that Alabama's statutory standards would exclude over 40% of the female
population but less than 1% of the male population, the court found that
with respect to such standards appellee had made out a prima facie case
of unlawful sex discrimination, which appellants had failed to rebut.
The court also found the challenged regulation impermissible under
Title VII as being based on stereotyped characterizations of the sexes,
and, rejecting appellants' bona-fide-occupational-qualification defense
under § 703(e) of Title VII, ruled that being male was not such a
qualification for the job of correctional counselor in a "contact"
position in an Alabama male maximum-security penitentiary. Held:
1. The District Court did not err in holding that Title VII prohibited
application of the statutory height and weight requirements to
appellee and the class she represents. Pp. 328-332.
(a) To establish a prima facie case of employment discrimination, a
plaintiff need only show that the facially neutral standards in question,
such as Alabama's height and weight standards, select applicants for
hire in a significantly discriminatory pattern, and here the showing of
the disproportionate impact of the height and weight standards on
women based on national statistics, rather than on comparative statistics
Page 322
of actual applicants, sufficed to make out a prima facie case. Pp.
328-331.
(b) Appellants failed to rebut the prima facie case of discrimination
on the basis that the height and weight requirements are job related
in that they have a relationship to the strength essential to efficient
job performance as a correctional counselor, where appellants produced
no evidence correlating such requirements with the requisite amount of
strength thought essential to good job performance, and in fact failed
to offer evidence of any kind in specific justification of the statutory
standards. P. 331.
2. In the particular circumstances of this case, the District Court
erred in rejecting appellants' contention that the regulation in question
falls within the narrow ambit of the bona-fide-occupational-qualification
exception of § 703(e), it appearing from the evidence that Alabama
maintains a prison system where violence is the order of the day, inmate
access to guards is facilitated by dormitory living arrangements,
every correctional institution is understaffed, and a substantial portion
of the inmate population is composed of sex offenders mixed at random
with other prisoners, and that therefore the use of women guards in
"contact" positions in the maximum-security male penitentiaries would
pose a substantial security problem, directly linked to the sex of the
prison guard. Pp. 332-337.
418 F. Supp. 1169, affirmed in part, reversed in part, and remanded.
STEWART, J., delivered the opinion of the Court, in which POWELL and
STEVENS, JJ., joined; in all but Part II of which BURGER, C. J., and
BLACKMUN and REHNQUIST, JJ., joined; and in all but Part III of which
BRENNAN and MARSHALL, JJ., joined. REHNQUIST, J., filed an opinion
concurring in the result and concurring in part, in which BURGER, C. J.,
and BLACKMUN, J., joined, post, p. 337. MARSHALL, J., filed an opinion
concurring in part and dissenting in part, in which BRENNAN, J., joined,
post, p. 340. WHITE, J., filed a dissenting opinion, post, p. 347.
G. Daniel Evans, Assistant Attorney General of Alabama,
argued the cause for appellants pro hac vice. With him on the
briefs were William J. Baxley, Attorney General, and Walter
S. Turner and Eric A. Bowen, Assistant Attorneys General.
Pamela S. Horowitz argued the cause for appellees pro hac
vice. With her on the brief was Morris S. Dees.[fn*]
[fn*] Page 322
Briefs of amici curiae urging affirmance were filed by Evelle J.
Page 323
Younger, Attorney General, Stanford N. Gruskin, Chief Assistant Attorney
General, Warren J. Abbott, Assistant Attorney General, and Hadassa K.
Gilbert, Deputy Attorney General, for the State of California; by
Slade Gorton, Attorney General of Washington, Morton M. Tytler, Senior
Assistant Attorney General, and Anne L. Ellington, Assistant Attorney
General, for the Washington State Human Rights Comm'n; and by Ruth Bader
Ginsburg, Marjorie Mazen Smith, and Joel Gora for the American Civil
Liberties Union.
J. Albert Woll, Laurence Gold, and Judith Lichtman filed a brief for
the Women's Legal Defense Fund et al. as amici curiae.
Page 323
MR. JUSTICE STEWART delivered the opinion of the Court.
Appellee Dianne Rawlinson sought employment with the
Alabama Board of Corrections as a prison guard, called in
Alabama a "correctional counselor." After her application
was rejected, she brought this class suit under Title VII of
the Civil Rights Act of 1964, 78 Stat. 253, as amended,
42 U.S.C. § 2000e et seq. (1970 ed. and Supp. V), and under
42 U.S.C. § 1983, alleging that she had been denied employment
because of her sex in violation of federal law. A three-judge
Federal District Court for the Middle District of Alabama
decided in her favor. Mieth v. Dothard, 418 F. Supp. 1169
. We noted probable jurisdiction of this appeal from the
District Court's judgment. 429 U.S. 976.[fn1]
I
At the time she applied for a position as correctional counselor
trainee, Rawlinson was a 22-year-old college graduate
whose major course of study had been correctional psychology.
She was refused employment because she failed to
meet the minimum 120-pound weight requirement established
Page 324
by an Alabama statute. The statute also establishes a
height minimum of 5 feet 2 inches.[fn2]
After her application was rejected because of her weight,
Rawlinson filed a charge with the Equal Employment Opportunity
Commission, and ultimately received a right-to-sue
letter.[fn3] She then filed a complaint in the District Court on
behalf of herself and other similarly situated women, challenging
the statutory height and weight minima as violative
of Title VII and the Equal Protection Clause of the Fourteenth
Amendment.[fn4] A three-judge court was convened.[fn5]
While the suit was pending, the Alabama Board of Corrections
Page 325
adopted Administrative Regulation 204, establishing
gender criteria for assigning correctional counselors to maximum-security
institutions for "contact positions," that is, positions
requiring continual close physical proximity to inmates
of the institution.[fn6] Rawlinson amended her class-action
Page 326
complaint by adding a challenge to Regulation 204 as also
violative of Title VII and the Fourteenth Amendment.
Like most correctional facilities in the United States,[fn7]
Alabama's prisons are segregated on the basis of sex. Currently
the Alabama Board of Corrections operates four major
all-male penitentiaries  Holman Prison, Kilby Corrections
Facility, G. K. Fountain Correction Center, and Draper Correctional
Center. The Board also operates the Julia Tutwiler
Prison for Women, the Frank Lee Youth Center, the Number
Four Honor Camp, the State Cattle Ranch, and nine Work Release
Centers, one of which is for women. The Julia Tutwiler
Prison for Women and the four male penitentiaries are maximum-security
institutions. Their inmate living quarters are
for the most part large dormitories, with communal showers
and toilets that are open to the dormitories and hallways.
The Draper and Fountain penitentiaries carry on extensive
farming operations, making necessary a large number of strip
searches for contraband when prisoners re-enter the prison
buildings.
A correctional counselor's primary duty within these institutions
is to maintain security and control of the inmates
Page 327
by continually supervising and observing their activities.[fn8]
To be eligible for consideration as a correctional counselor,
an applicant must possess a valid Alabama driver's license,
have a high school education or its equivalent, be free from
physical defects, be between the ages of 20 1/2 years and 45
years at the time of appointment, and fall between the minimum
height and weight requirements of 5 feet 2 inches, and
120 pounds, and the maximum of 6 feet 10 inches, and 300
pounds. Appointment is by merit, with a grade assigned each
applicant based on experience and education. No written
examination is given.
At the time this litigation was in the District Court, the
Board of Corrections employed a total of 435 people in various
correctional counselor positions, 56 of whom were women.
Of those 56 women, 21 were employed at the Julia Tutwiler
Prison for Women, 13 were employed in noncontact positions
at the four male maximum-security institutions, and the
remaining 22 were employed at the other institutions operated
by the Alabama Board of Corrections. Because most
of Alabama's prisoners are held at the four maximum-security
male penitentiaries, 336 of the 435 correctional counselor
jobs were in those institutions, a majority of them
concededly in the "contact" classification.[fn9] Thus, even
though meeting the statutory height and weight requirements,
women applicants could under Regulation 204 compete
Page 328
equally with men for only about 25% of the correctional
counselor jobs available in the Alabama prison system.
II
In enacting Title VII, Congress required "the removal of
artificial, arbitrary, and unnecessary barriers to employment
when the barriers operate invidiously to discriminate on the
basis of racial or other impermissible classification." Griggs
v. Duke Power Co., 401 U.S. 424, 431. The District Court
found that the minimum statutory height and weight requirements
that applicants for employment as correctional
counselors must meet constitute the sort of arbitrary barrier
to equal employment opportunity that Title VII forbids.[fn10]
The appellants assert that the District Court erred both in
finding that the height and weight standards discriminate
against women, and in its refusal to find that, even if they
do, these standards are justified as "job related."
A
The gist of the claim that the statutory height and weight
requirements discriminate against women does not involve
an assertion of purposeful discriminatory motive.[fn11] It is asserted,
Page 329
rather, that these facially neutral qualification standards
work in fact disproportionately to exclude women from
eligibility for employment by the Alabama Board of Corrections.
We dealt in Griggs v. Duke Power Co., supra,
and Albemarle Paper Co. v. Moody, 422 U.S. 405, with
similar allegations that facially neutral employment standards
disproportionately excluded Negroes from employment,
and those cases guide our approach here.
Those cases make clear that to establish a prima facie
case of discrimination, a plaintiff need only show that the
facially neutral standards in question select applicants for
hire in a significantly discriminatory pattern. Once it is
thus shown that the employment standards are discriminatory
in effect, the employer must meet "the burden of showing
that any given requirement [has] . . . a manifest relationship
to the employment in question." Griggs v. Duke Power
Co., supra, at 432. If the employer proves that the challenged
requirements are job related, the plaintiff may then show
that other selection devices without a similar discriminatory
effect would also "serve the employer's legitimate interest in
`efficient and trustworthy workmanship.'" Albemarle Paper
Co. v. Moody, supra, at 425, quoting McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 801.
Although women 14 years of age or older compose 52.75%
of the Alabama population and 36.89% of its total labor
force, they hold only 12.9% of its correctional counselor
positions. In considering the effect of the minimum height
and weight standards on this disparity in rate of hiring
between the sexes, the District Court found that the 5'2"-requirement
would operate to exclude 33.29% of the women
in the United States between the ages of 18-79, while
excluding only 1.28% of men between the same ages. The
120-pound weight restriction would exclude 22.29% of the
women and 2.35% of the men in this age group. When the
height and weight restrictions are combined, Alabama's statutory
standards would exclude 41.13% of the female population
Page 330
while excluding less than 1% of the male population.[fn12]
Accordingly, the District Court found that Rawlinson had
made out a prima facie case of unlawful sex discrimination.
The appellants argue that a showing of disproportionate
impact on women based on generalized national statistics
should not suffice to establish a prima facie case. They point
in particular to Rawlinson's failure to adduce comparative
statistics concerning actual applicants for correctional counselor
positions in Alabama. There is no requirement, however,
that a statistical showing of disproportionate impact
must always be based on analysis of the characteristics of
actual applicants. See Griggs v. Duke Power Co., supra,
at 430. The application process itself might not adequately
reflect the actual potential applicant pool, since otherwise
qualified people might be discouraged from applying because
of a self-recognized inability to meet the very standards
challenged as being discriminatory. See Teamsters v. United
States, 431 U.S. 324, 365-367. A potential applicant could
easily determine her height and weight and conclude that to
make an application would be futile. Moreover, reliance on
general population demographic data was not misplaced where
there was no reason to suppose that physical height and weight
characteristics of Alabama men and women differ markedly
from those of the national population.
Page 331
For these reasons, we cannot say that the District Court
was wrong in holding that the statutory height and weight
standards had a discriminatory impact on women applicants.
The plaintiffs in a case such as this are not required to exhaust
every possible source of evidence, if the evidence actually
presented on its face conspicuously demonstrates a job
requirement's grossly discriminatory impact. If the employer
discerns fallacies or deficiencies in the data offered
by the plaintiff, he is free to adduce countervailing evidence of
his own. In this case no such effort was made.[fn13]
B
We turn, therefore, to the appellants' argument that they
have rebutted the prima facie case of discrimination by
showing that the height and weight requirements are job
related. These requirements, they say, have a relationship
to strength, a sufficient but unspecified amount of which is
essential to effective job performance as a correctional counselor.
In the District Court, however, the appellants produced
no evidence correlating the height and weight
requirements with the requisite amount of strength thought
essential to good job performance. Indeed, they failed to
offer evidence of any kind in specific justification of the
statutory standards.[fn14]
Page 332
If the job-related quality that the appellants identify is
bona fide, their purpose could be achieved by adopting and
validating a test for applicants that measures strength directly.[fn15]
Such a test, fairly administered, would fully satisfy
the standards of Title VII because it would be one that
"measure[s] the person for the job and not the person in the
abstract." Griggs v. Duke Power Co., 401 U.S., at 436. But
nothing in the present record even approaches such a
measurement.
For the reasons we have discussed, the District Court was
not in error in holding that Title VII of the Civil Rights
Act of 1964, as amended, prohibits application of the statutory
height and weight requirements to Rawlinson and the
class she represents.
III
Unlike the statutory height and weight requirements, Regulation
204 explicitly discriminates against women on the
basis of their sex.[fn16] In defense of this overt discrimination,
Page 333
the appellants rely on § 703(e) of Title VII, 42 U.S.C. § 2000e-2
(e), which permits sex-based discrimination "in
those certain instances where . . . sex . . . is a bona fide
occupational qualification reasonably necessary to the normal
operation of that particular business or enterprise."
The District Court rejected the bona-fide-occupational-qualification
(bfoq) defense, relying on the virtually uniform
view of the federal courts that § 703(e) provides only the narrowest
of exceptions to the general rule requiring equality
of employment opportunities. This view has been variously
formulated. In Diaz v. Pan American World Airways,
442 F.2d 385, 388, the Court of Appeals for the Fifth Circuit held
that "discrimination based on sex is valid only when the
essence of the business operation would be undermined by
not hiring members of one sex exclusively." (Emphasis in
original.) In an earlier case, Weeks v. Southern Bell Tel. &
Tel. Co., 408 F.2d 228, 235, the same court said that an
employer could rely on the bfoq exception only by proving
"that he had reasonable cause to believe, that is, a factual
basis for believing, that all or substantially all women would
be unable to perform safely and efficiently the duties of the
job involved." See also Phillips v. Martin Marietta Corp.,
400 U.S. 542. But whatever the verbal formulation, the
federal courts have agreed that it is impermissible under Title
VII to refuse to hire an individual woman or man on the basis
of stereotyped characterizations of the sexes,[fn17] and the District
Page 334
Court in the present case held in effect that Regulation 204 is
based on just such stereotypical assumptions.
We are persuaded  by the restrictive language of § 703(e),
the relevant legislative history,[fn18] and the consistent interpretation
of the Equal Employment Opportunity commission[fn19]
 that the bfoq exception was in fact meant to be an
extremely narrow exception to the general prohibition of
discrimination on the basis of sex.[fn20] In the particular factual
circumstances of this case, however, we conclude that the
District Court erred in rejecting the State's contention that
Regulation 204 falls within the narrow ambit of the bfoq
exception.
The environment in Alabama's penitentiaries is a peculiarly
inhospitable one for human beings of whatever sex.
Indeed, a Federal District Court has held that the conditions
of confinement in the prisons of the State, characterized by
"rampant violence" and a "jungle atmosphere," are constitutionally
intolerable. Pugh v. Locke, 406 F. Supp. 318,
325 (MD Ala.). The record in the present case shows that
Page 335
because of inadequate staff and facilities, no attempt is made
in the four maximum-security male penitentiaries to classify
or segregate inmates according to their offense or level of
dangerousness  a procedure that, according to expert testimony,
is essential to effective penological administration.
Consequently, the estimated 20% of the male prisoners who
are sex offenders are scattered throughout the penitentiaries'
dormitory facilities.
In this environment of violence and disorganization, it
would be an oversimplification to characterize Regulation
204 as an exercise in "romantic paternalism." Cf. Frontiero
v. Richardson, 411 U.S. 677, 684. In the usual case, the
argument that a particular job is too dangerous for women
may appropriately be met by the rejoinder that it is the
purpose of Title VII to allow the individual woman to make
that choice for herself.[fn21] More is at stake in this case, however,
than an individual woman's decision to weigh and
accept the risks of employment in a "contact" position in
a maximum-security male prison.
The essence of a correctional counselor's job is to maintain
prison security. A woman's relative ability to maintain order
in a male, maximum-security, unclassified penitentiary of the
type Alabama now runs could be directly reduced by her
womanhood. There is a basis in fact for expecting that sex
offenders who have criminally assaulted women in the past
would be moved to do so again if access to women were
established within the prison. There would also be a real
risk that other inmates, deprived of a normal heterosexual
environment, would assault women guards because they were
women.[fn22] In a prison system where violence is the order
Page 336
of the day, where inmate access to guards is facilitated by
dormitory living arrangements, where every institution is
understaffed, and where a substantial portion of the inmate
population is composed of sex offenders mixed at random
with other prisoners, there are few visible deterrents to inmate
assaults on women custodians.
Appellee Rawlinson's own expert testified that dormitory
housing for aggressive inmates poses a greater security problem
than single-cell lockups, and further testified that it would be
unwise to use women as guards in a prison where even 10%
of the inmates had been convicted of sex crimes and were
not segregated from the other prisoners.[fn23] The likelihood
that inmates would assault a woman because she was a
woman would pose a real threat not only to the victim of
the assault but also to the basic control of the penitentiary
and protection of its inmates and the other security personnel.
The employee's very womanhood would thus directly
undermine her capacity to provide the security that is the
essence of a correctional counselor's responsibility.
There was substantial testimony from experts on both
sides of this litigation that the use of women as guards in
"contact" positions under the existing conditions in Alabama
maximum-security male penitentiaries would pose a substantial
security problem, directly linked to the sex of the prison
guard. On the basis of that evidence, we conclude that the
District Court was in error in ruling that being male is
not a bona fide occupational qualification for the job of
Page 337
correctional counselor in a "contact" position in an Alabama
male maximum-security penitentiary.[fn24]
The judgment is accordingly affirmed in part and reversed
in part, and the case is remanded to the District Court for
further proceedings consistent with this opinion.
It is so ordered.
[fn1] Page 323
The appellants sought to raise for the first time in their brief on
the merits the claim that Congress acted unconstitutionally in extending
Title VII's coverage to state governments. See the Equal Employment
Opportunity Act of 1972, 86 Stat. 103, effective date, Mar. 24, 1972,
42 U.S.C. § 2000e (a), (b), (f), (h) (1970 ed., Supp. V). Not having been
raised in the District Court, that issue is not before us. See Adickes v.
Kress & Co., 398 U.S. 144, 147 n. 2; Irvine v. California,
347 U.S. 128, 129.
[fn2] Page 324
The statute establishes minimum physical standards for all law
enforcement officers. In pertinent part, it provides:
"(d) Physical qualification.  The applicant shall be not less than
five feet two inches nor more than six feet ten inches in height, shall
weigh not less than 120 pounds nor more than 300 pounds and shall be
certified by a licensed physician designated as satisfactory by the
appointing authority as in good health and physically fit for the
performance of his duties as a law-enforcement officer. The commission may
for good cause shown permit variances from the physical qualifications
prescribed in this subdivision." Ala. Code, Tit. 55, § 373 (109) (Supp.
1973).
[fn3] Page 324
See 42 U.S.C. § 2000e-5 (f) (1970 ed., Supp. V).
[fn4] Page
324 A second plaintiff named in the complaint was Brenda Mieth, who,
on behalf of herself and others similarly situated, challenged the 5'9"
height and 160-pound weight requirements for the position of Alabama
state trooper as violative of the Equal Protection Clause. The District
Court upheld her challenge, and the defendants did not appeal from
that aspect of the District Court's judgment.
[fn5] Page 324
Although a single-judge District Court could have considered
Rawlinson's Title VII claims, her coplaintiff's suit rested entirely on the
Constitution. See n. 4, supra. Given the similarity of the underlying
issues in the two cases, it was not inappropriate to convene a three-judge
court to deal with the constitutional and statutory issues presented in the
complaint. When a properly convened three-judge court enjoins the operation
of a state law on federal statutory grounds, an appeal to this Court from
that judgment lies under 28 U.S.C. § 1253. See Engineers v. Chicago,
R. I. & P. R. Co., 382 U.S. 423; Philbrook v. Glodgett, 421 U.S. 707.
[fn6] Page 325
Administrative Regulation 204 provides in pertinent part as follows:
"I. GENERAL
"1. The purpose of this regulation is to establish policy and procedure
for identifying and designating institutional Correctional Counselor I
positions which require selective certification for appointment of either
male or female employees from State Personnel Department registers.
. . . . .
"II. POLICY
"4. All Correctional Counselor I positions will be evaluated to identify
and designate those which require selective certification for appointment
of either a male or female employee. Such positions must fall within
a bona fide occupational qualification stated in Title 4[2]-2000c of the
United States Code . . . .
. . . . .
"5. Selective certification from the Correctional Counselor Trainee
register will be requested of the State Personnel Department whenever a
position is being filled which has been designated for either a male or
female employee only.
. . . . .
"III. PROCEDURE
"8. Institutional Wardens and Directors will identify each institutional
Correctional Counselor I position which they feel requires selective
certification and will request that it be so designated in writing to the
Associate Commissioner for Administration for his review, evaluation, and
submission to the Commissioner for final decision.
"9. The request will contain the exact duties and responsibilities of
the position and will utilize and identify the following criteria to
establish that selective certification is necessary;
"A. That the presence of the opposite sex would cause disruption of the
orderly running and security of the institution.
"B. That the position would require contact with the inmates of the
opposite sex without the presence of others.
"C. That the position would require patrolling dormitories, restrooms,
or showers while in use, frequently, during the day or night.
Page 326
"D. That the position would require search of inmates of the opposite
sex on a regular basis.
"E. That the position would require that the Correctional Counselor
Trainee not be armed with a firearm.
"10. All institutional Correctional Counselor I positions which are not
approved for selective certification will be filled from Correctional
counselor Trainee registers without regard to sex."
Although Regulation 204 is not limited on its face to contact positions
in maximum-security institutions, the District Court found that it did not
"preclude . . . [women] from serving in contact positions in the all-male
institutions other than the penitentiaries." 418 F. Supp., at 1176.
Appellants similarly defended the regulation as applying only to
maximum-security facilities.
[fn7] Page 326
Note, The Sexual Segregation of American Prisons, 82 Yale L.J. 1229
(1973).
[fn8] Page 327
The official job description for a correctional counselor position
emphasizes counseling as well as security duties; the District Court found:
"[C]orrectional counselors are persons who are commonly referred to as
prison guards. Their duties primarily involve security rather than
counseling." 418 F. Supp. 1169, 1175.
[fn9] Page 327
At the time of the trial the Board of Corrections had not yet
classified all of its correctional counselor positions in the
maximum-security institutions according to the criteria established in
Regulation 204; consequently evidence of the exact number of "male only"
jobs within the prison system was not available.
[fn10] Page 328
Section 703(a) of Title VII, 42 U.S.C. § 2000e-2 (a) (1970 ed. and
Supp. V), provides:
"(a) Employer practices. It shall be an unlawful employment practice
for an employer â€â€
"(1) to fail or refuse to hire or to discharge any individual, or
otherwise to discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment, because of
such individual's race, color, religion, sex, or national origin; or
"(2) to limit, segregate, or classify his employees or applicants for
employment in any way which would deprive or tend to deprive any individual
of employment opportunities or otherwise adversely affect his
status as an employee, because of such individual's race, color, religion,
sex, or national origin."
[fn11] Page 328
See Teamsters v. United States, 431 U.S. 324, 335-336, n. 15.
[fn12] Page 330
Affirmatively stated, approximately 99.76% of the men and 58.87%
of the women meet both these physical qualifications. From the
separate statistics on height and weight of males it would appear
that after adding the two together and allowing for some overlap
the result would be to exclude between 2.35% and 3.63% of males from
meeting Alabama's statutory height and weight minima. None of the
parties has challenged the accuracy of the District Court's computations
on this score, however, and the discrepancy is in any event insignificant
in light of the gross disparity between the female and male exclusions.
Even under revised computations the disparity would greatly exceed the
34% to 12% disparity that served to invalidate the high school diploma
requirement in the Griggs case. 401 U.S., at 430.
[fn13] Page 331
The height and weight statute contains a waiver provision that the
appellants urge saves it from attack under Title VII. See n. 2, supra.
The District Court noted that a valid waiver provision might indeed have
that effect, but found that applicants were not informed of the waiver
provision, and that the Board of Corrections had never requested a waiver
from the Alabama Peace Officers' Standards and Training Commission.
The court therefore correctly concluded that the waiver provision as
administered failed to overcome the discriminatory effect of the statute's
basic provisions.
[fn14] Page 331
In what is perhaps a variation on their constitutional challenge to
the validity of Title VII itself, see n. 1, supra, the appellants contend
that the establishment of the minimum height and weight standards by statute
requires that they be given greater deference than is typically
Page 332
given private employer-established job qualifications. The relevant
legislative history of the 1972 amendments extending Title VII to the States
as employers does not, however, support such a result. Instead, Congress
expressly indicated the intent that the same Title VII principles be applied
to governmental and private employers alike. See H.R. Rep. No. 92-238,
p. 17 (1971); S. Rep. No. 92-415, p. 10 (1971). See also Schaeffer v.
San Diego Yellow Cabs, 462 F.2d 1002 (CA9). Thus for both private
and public employers, "[t]he touchstone is business necessity," Griggs,
401 U.S., at 431; a discriminatory employment practice must be shown to be
necessary to safe and efficient job performance to survive a Title VII
challenge.
[fn15] Page 332
Cf. EEOC Guidelines on Employee Selection Procedures,
29 C.F.R. § 1607 (1976). See also Washington v.
Davis, 426 U.S. 229, 246-247; Albemarle
Paper Co. v. Moody, 422 U.S. 405; Officers
for Justice v. Civil Service Comm'n, 395 F. Supp. 378
(ND Cal.).
[fn16] Page 332
By its terms Regulation 204 applies to contact positions in both
male and female institutions. See n. 6, supra. The District Court found,
however, that "Regulation 204 is the administrative means by which the
[Board of Corrections'] policy of not hiring women as correctional
Page 333
counselors in contact positions in all-male penitentiaries has been
implemented." 418 F. Supp., at 1176. The Regulation excludes women from
consideration for approximately 75% of the available correctional counselor
jobs in the Alabama prison system.
[fn17] Page 333
See, e.g., Gillin v. Federal Paper Board Co., 479 F.2d 97 (CA2);
Jurinko v. Edwin L. Wiegand Co., 477 F.2d 1038 (CA3); Rosenfeld v.
Southern Pacific Co., 444 F.2d 1219 (CA9); Bowe v. Colgate-Palmolive
Co., 416 F.2d 711 (CA7); Meadows v. Ford Motor Co., 62 F.R.D. 98
(WD Ky.), modified on other grounds, 510 F.2d 939 (CA6). See also
Jones Metal Products Co. v. Walker, 29 Ohio St.2d 173, 281 N.E.2d 1;
Page 334
EEOC Guidelines on Discrimination Because of Sex, 29 C.F.R. § 1604
(1976).
[fn18] Page 334
See Interpretative Memorandum of Senators Clark and Case, 110
Cong. Rec. 7213 (1964).
[fn19] Page 334
The EEOC issued guidelines on sex discrimination in 1965 reflecting
its position that "the bona fide occupational qualification as to sex should
be interpreted narrowly." 29 C.F.R. § 1604.2 (a). It has adhered to that
principle consistently, and its construction of the statute can accordingly
be given weight. See Griggs v. Duke Power Co., 401 U.S., at 434;
McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 279-280.
[fn20] Page 334
In the case of a state employer, the bfoq exception would have to be
interpreted at the very least so as to conform to the Equal Protection
Clause of the Fourteenth Amendment. The parties do not suggest, however,
that the Equal Protection Clause requires more rigorous scrutiny of a
State's sexually discriminatory employment policy than does Title VII.
There is thus no occasion to give independent consideration to the District
Court's ruling that Regulation 204 violates the Fourteenth Amendment
as well as Title VII.
[fn21] Page 335
See, e.g., Weeks v. Southern Bell Tel. & Tel. Co., 408 F.2d 228,
232-236 (CA5); Bowe v. Colgate-Palmolive Co., supra, at 717-718;
Rosenfeld v. Southern Pacific Co., supra.
[fn22] Page 335
The record contains evidence of an attack on a female clerical worker
in an Alabama prison, and of an incident involving a woman student who
Page 336
was taken hostage during a visit to one of the maximum-security
institutions.
[fn23] Page 336
Alabama's penitentiaries are evidently not typical. Appellee
Rawlinson's two experts testified that in a normal, relatively stable
maximum-security prison  characterized by control over the inmates,
reasonable living conditions, and segregation of dangerous offenders â€â€
women guards could be used effectively and beneficially. Similarly, an
amicus brief filed by the State of California attests to that State's
success in using women guards in all-male penitentiaries.
[fn24] Page 337
The record shows, by contrast, that Alabama's minimum-security
facilities, such as work-release centers, are recognized by their inmates
as privileged confinement situations not to be lightly jeopardized by
disobeying applicable rules of conduct. Inmates assigned to these
institutions are thought to be the "cream of the crop" of the Alabama prison
population.
MR. JUSTICE REHNQUIST, with whom THE CHIEF JUSTICE
and MR. JUSTICE BLACKMUN join, concurring in the result
and concurring in part.
I agree with, and join, Parts I and III of the Court's
opinion in this case and with its judgment. While I also
agree with the Court's conclusion in Part II of its opinion,
holding that the District Court was "not in error" in holding
the statutory height and weight requirements in this case
to be invalidated by Title VII, ante, at 332, the issues with
which that Part deals are bound to arise so frequently
that I feel obliged to separately state the reasons for my
agreement with its result. I view affirmance of the District
Court in this respect as essentially dictated by the peculiarly
limited factual and legal justifications offered below
by appellants on behalf of the statutory requirements. For
that reason, I do not believe  and do not read the Court's
opinion as holding  that all or even many of the height
and weight requirements imposed by States on applicants
for a multitude of law enforcement agency jobs are pretermitted
by today's decision.
I agree that the statistics relied upon in this case are
sufficient, absent rebuttal, to sustain a finding of a prima
Page 338
facie violation of § 703(a)(2), in that they reveal a significant
discrepancy between the numbers of men, as opposed
to women, who are automatically disqualified by reason of
the height and weight requirements. The fact that these
statistics are national figures of height and weight, as opposed
to statewide or pool-of-labor-force statistics, does not seem to
me to require us to hold that the District Court erred as a matter
of law in admitting them into evidence. See Hamling v.
United States, 418 U.S. 87, 108, 124-125 (1974); cf. Zenith
Corp. v. Hazeltine, 395 U.S. 100, 123-125 (1969). It is
for the District Court, in the first instance, to determine
whether these statistics appear sufficiently probative of the
ultimate fact in issue  whether a given job qualification
requirement has a disparate impact on some group protected
by Title VII. Hazelwood School Dist. v. United States, ante,
at 312-313; see Hamling v. United States, supra, at 108, 124-125;
Mayor v. Educational Equality League, 415 U.S. 605,
621 n. 20 (1974); see also McAllister v. United States,
348 U.S. 19 (1954); United States v. Yellow Cab Co., 338 U.S. 338,
340-342 (1949). In making this determination, such
statistics are to be considered in light of all other relevant facts
and circumstances. Cf. Teamsters v. United States, 431 U.S. 324,
340 (1977). The statistics relied on here do not suffer
from the obvious lack of relevancy of the statistics relied on
by the District Court in Hazelwood School Dist. v. United
States, ante, at 308. A reviewing court cannot say as a matter
of law that they are irrelevant to the contested issue or so
lacking in reliability as to be inadmissible.
If the defendants in a Title VII suit believe there to
be any reason to discredit plaintiffs' statistics that does not
appear on their face, the opportunity to challenge them
is available to the defendants just as in any other lawsuit.
They may endeavor to impeach the reliability of the statistical
evidence, they may offer rebutting evidence, or they may disparage
in arguments or in briefs the probative weight which
Page 339
the plaintiffs' evidence should be accorded. Since I agree with
the Court that appellants made virtually no such effort,
ante, at 331, I also agree with it that the District Court cannot
be said to have erred as a matter of law in finding that
a prima facie case had been made out in the instant case.
While the District Court's conclusion is by no means
required by the proffered evidence, I am unable to conclude
that the District Court's finding in that respect was clearly
erroneous. In other cases there could be different evidence
which could lead a district court to conclude that height
and weight are in fact an accurate enough predictor of
strength to justify, under all the circumstances, such minima.
Should the height and weight requirements be found to
advance the job-related qualification of strength sufficiently
to rebut the prima facie case, then, under our cases, the
burden would shift back to appellee Rawlinson to demonstrate
that other tests, without such disparate effect, would also meet
that concern. Albemarle Paper Co. v. Moody, 422 U.S. 405,
425 (1975). But, here, the District Court permissibly
concluded that appellants had not shown enough of a nexus
even to rebut the inference.
Appellants, in order to rebut the prima facie case under
the statute, had the burden placed on them to advance
job-related reasons for the qualification. McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973). This burden
could be shouldered by offering evidence or by making legal
arguments not dependent on any new evidence. The District
Court was confronted, however, with only one suggested
job-related reason for the qualification  that of strength.
Appellants argued only the job-relatedness of actual physical
strength; they did not urge that an equally job-related
qualification for prison guards is the appearance of strength.
As the Court notes, the primary job of correctional counselor
in Alabama prisons "is to maintain security and control of
the inmates . . .," ante, at 326, a function that I at least would
Page 340
imagine is aided by the psychological impact on prisoners
of the presence of tall and heavy guards. If the appearance
of strength had been urged upon the District Court here as
a reason for the height and weight minima, I think that the
District Court would surely have been entitled to reach a
different result than it did. For, even if not perfectly correlated,
I would think that Title VII would not preclude
a State from saying that anyone under 5'2" or 120 pounds,
no matter how strong in fact, does not have a sufficient
appearance of strength to be a prison guard.
But once the burden has been placed on the defendant,
it is then up to the defendant to articulate the asserted
job-related reasons underlying the use of the minima.
McDonnell Douglas Corp. v. Green, supra, at 802; Griggs v.
Duke Power Co., 401 U.S. 424, 431 (1971); Albemarle Paper
Co. v. Moody, supra, at 425. Because of this burden, a
reviewing court is not ordinarily justified in relying on arguments
in favor of a job qualification that were not first presented
to the trial court. Cf. United States v. Arnold, Schwinn
& Co., 388 U.S. 365, 374 n. 5 (1967); Thomas v. Taylor,
224 U.S. 73, 84 (1912); Bell v. Bruen, 1 How. 169, 187 (1843).
As appellants did not even present the "appearance of
strength" contention to the District Court as an asserted job-related
reason for the qualification requirements, I agree that
their burden was not met. The District Court's holding thus
did not deal with the question of whether such an assertion
could or did rebut appellee Rawlinson's prima facie case.
MR. JUSTICE MARSHALL, with whom MR. JUSTICE BRENNAN
joins, concurring in part and dissenting in part.
I agree entirely with the Court's analysis of Alabama's
height and weight requirements for prison guards, and with its
finding that these restrictions discriminate on the basis of sex
in violation of Title VII. Accordingly, I join Parts I and II
of the Court's opinion. I also agree with much of the Court's
general discussion in Part III of the bona-fide-occupational-qualification
Page 341
exception contained in § 703(e) of Title VII.[fn1]
The Court is unquestionably correct when it holds "that the
bfoq exception was in fact meant to be an extremely narrow
exception to the general prohibition of discrimination on the
basis of sex." Ante, at 334. See Phillips v. Martin Marietta
Corp., 400 U.S. 542, 544 (1971) (MARSHALL, J., concurring).
I must, however, respectfully disagree with the Court's application
of the bfoq exception in this case.
The Court properly rejects two proffered justifications for
denying women jobs as prison guards. It is simply irrelevant
here that a guard's occupation is dangerous and that some
women might be unable to protect themselves adequately.
Those themes permeate the testimony of the state officials
below, but as the Court holds, "the argument that a particular
job is too dangerous for women" is refuted by the "purpose of
Title VII to allow the individual woman to make that choice
for herself." Ante, at 335. Some women, like some men,
undoubtedly are not qualified and do not wish to serve as
prison guards, but that does not justify the exclusion of all
women from this employment opportunity. Thus, "[i]n the
usual case," ibid., the Court's interpretation of the bfoq exception
would mandate hiring qualified women for guard jobs
in maximum-security institutions. The highly successful
experiences of other States allowing such job opportunities,
see briefs for the States of California and Washington as
amici curiae, confirm that absolute disqualification of women
is not, in the words of Title VII, "reasonably necessary to
the normal operation" of a maximum-security prison.
What would otherwise be considered unlawful discrimination
against women is justified by the Court, however, on the
Page 342
basis of the "barbaric and inhumane" conditions in Alabama
prisons, conditions so bad that state officials have conceded
that they violate the Constitution. See Pugh v. Locke,
406 F. Supp. 318, 329, 331 (MD Ala. 1976). To me, this
analysis sounds distressingly like saying two wrongs make a
right. It is refuted by the plain words of § 703(e). The
statute requires that a bfoq be "reasonably necessary to the
normal operation of that particular business or enterprise."
But no governmental "business" may operate "normally" in
violation of the Constitution. Every action of government is
constrained by constitutional limitations. While those limits
may be violated more frequently than we would wish, no one
disputes that the "normal operation" of all government functions
takes place within them. A prison system operating
in blatant violation of the Eighth Amendment is an exception
that should be remedied with all possible speed, as Judge
Johnson's comprehensive order in Pugh v. Locke, supra, is
designed to do. In the meantime, the existence of such violations
should not be legitimatized by calling them "normal."
Nor should the Court accept them as justifying conduct that
would otherwise violate a statute intended to remedy age-old
discrimination.
The Court's error in statutory construction is less objectionable,
however, than the attitude it displays toward women.
Though the Court recognizes that possible harm to women
guards is an unacceptable reason for disqualifying women, it
relies instead on an equally speculative threat to prison
discipline supposedly generated by the sexuality of female
guards. There is simply no evidence in the record to show
that women guards would create any danger to security in
Alabama prisons significantly greater than that which already
exists. All of the dangers  with one exception discussed
below  are inherent in a prison setting, whatever the gender
of the guards.
Page 343
The Court first sees women guards as a threat to security
because "there are few visible deterrents to inmate assaults on
women custodians." Ante, at 336. In fact, any prison guard
is constantly subject to the threat of attack by inmates, and
"invisible" deterrents are the guard's only real protection.
No prison guard relies primarily on his or her ability to ward
off an inmate attack to maintain order. Guards are typically
unarmed and sheer numbers of inmates could overcome the
normal complement. Rather, like all other law enforcement
officers, prison guards must rely primarily on the moral
authority of their office and the threat of future punishment
for miscreants. As one expert testified below, common sense,
fairness, and mental and emotional stability are the qualities a
guard needs to cope with the dangers of the job. App. 81.
Well qualified and properly trained women, no less than men,
have these psychological weapons at their disposal.
The particular severity of discipline problems in the
Alabama maximum-security prisons is also no justification for
the discrimination sanctioned by the Court. The District
Court found in Pugh v. Locke, supra, that guards "must spend
all their time attempting to maintain control or to protect
themselves." 406 F. Supp., at 325. If male guards face an
impossible situation, it is difficult to see how women could
make the problem worse, unless one relies on precisely the type
of generalized bias against women that the Court agrees Title
VII was intended to outlaw. For example, much of the
testimony of appellants' witnesses ignores individual differences
among members of each sex and reads like "ancient
canards about the proper role of women." Phillips v. Martin
Marietta Corp., 400 U.S., at 545. The witnesses claimed that
women guards are not strict disciplinarians; that they are
physically less capable of protecting themselves and subduing
unruly inmates; that inmates take advantage of them as they
did their mothers, while male guards are strong father figures
Page 344
who easily maintain discipline, and so on.[fn2] Yet the record
shows that the presence of women guards has not led to a
single incident amounting to a serious breach of security in
any Alabama institution.[fn3] And, in any event, "[g]uards
rarely enter the cell blocks and dormitories," Pugh v. Locke,
406 F. Supp., at 325, where the danger of inmate attacks is the
greatest.
Page 345
It appears that the real disqualifying factor in the Court's
view is "[t]he employee's very womanhood." Ante, at 336.
The Court refers to the large number of sex offenders in
Alabama prisons, and to "[t]he likelihood that inmates would
assault a woman because she was a woman." Ibid. In short,
the fundamental justification for the decision is that women
as guards will generate sexual assaults. With all respect, this
rationale regrettably perpetuates one of the most insidious of
the old myths about women  that women, wittingly or not,
are seductive sexual objects. The effect of the decision, made
I am sure with the best of intentions, is to punish women
because their very presence might provoke sexual assaults. It
is women who are made to pay the price in lost job opportunities
for the threat of depraved conduct by prison inmates.
Once again, "[t]he pedestal upon which women have been
placed has . . ., upon closer inspection, been revealed as a
cage." Sail'er Inn, Inc. v. Kirby, 5 Cal.3d 1, 20, 485 P.2d 529,
541 (1971). It is particularly ironic that the cage is erected
here in response to feared misbehavior by imprisoned
criminals.[fn4]
The Court points to no evidence in the record to support
the asserted "likelihood that inmates would assault a woman
because she was a woman." Ante, at 336. Perhaps the Court
relies upon common sense, or "innate recognition," Brief for
Appellants 51. But the danger in this emotionally laden
context is that common sense will be used to mask the
"`romantic paternalism'" and persisting discriminatory attitudes
Page 346
that the Court properly eschews. Ante, at 335. To me,
the only matter of innate recognition is that the incidence of
sexually motivated attacks on guards will be minute compared
to the "likelihood that inmates will assault" a guard because
he or she is a guard.
The proper response to inevitable attacks on both female
and male guards is not to limit the employment opportunities
of law-abiding women who wish to contribute to their community,
but to take swift and sure punitive action against the
inmate offenders. Presumably, one of the goals of the
Alabama prison system is the eradication of inmates' antisocial
behavior patterns so that prisoners will be able to live
one day in free society. Sex offenders can begin this process
by learning to relate to women guards in a socially acceptable
manner. To deprive women of job opportunities because of
the threatened behavior of convicted criminals is to turn our
social priorities upside down.[fn5]
Although I do not countenance the sex discrimination
Page 347
condoned by the majority, it is fortunate that the Court's
decision is carefully limited to the facts before it. I trust
the lower courts will recognize that the decision was impelled
by the shockingly inhuman conditions in Alabama
prisons, and thus that the "extremely narrow [bfoq] exception"
recognized here, ante, at 334, will not be allowed "to
swallow the rule" against sex discrimination. See Phillips v.
Martin Marietta Corp., 400 U.S., at 545. Expansion of
today's decision beyond its narrow factual basis would erect
a serious roadblock to economic equality for women.
[fn1] Page 341
Section 703(e), 42 U.S.C. § 2000e-2 (e), provides in pertinent
part:
"(1) it shall not be an unlawful employment practice for an employer
to hire and employ employees . . . on the basis of . . . sex . . . in those
certain instances where . . . sex . . . is a bona fide occupational
qualification reasonably necessary to the normal operation of that
particular business or enterprise . . . ."
[fn2] Page 344
See, e.g., App. 111-112, 117-118, 144, 147, 151-153, 263-264,
290-292, 301-302. The State Commissioner of Corrections summed up these
prejudices in his testimony:
"Q Would a male that is 5'6", 140 lbs., be able to perform the job
of Correctional Counselor in an all male institution?
. . . . .
"A Well, if he qualifies otherwise, yes.
"Q But a female 5'6", 140 lbs., would not be able to perform all the
duties?
"A No.
"Q What do you use as a basis for that opinion?
"A The innate intention between a male and a female. The physical
capabilities, the emotions that go into the psychic make-up of a female vs.
the psychic make-up of a male. The attitude of the rural type inmate we
have vs. that of a woman. The superior feeling that a man has, historically,
over that of a female." Id., at 153.
Strikingly similar sentiments were expressed a century ago by a Justice
of this Court in a case long since discredited:
"I am not prepared to say that it is one of [women's] fundamental rights
and privileges to be admitted into every office and position, including
those which require highly special qualifications and demanding
special responsibilities. . . . [I]n my opinion, in view of the particular
characteristics, destiny, and mission of women, it is within the province
of the legislature to ordain what offices, positions, and callings shall be
filled and discharged by men, and shall receive the benefit of those
energies and responsibilities, and that decision and firmness which are
presumed to predominate in the sterner sex." Bradwell v. Illinois,
16 Wall. 130, 139, 142 (1873) (Bradley, J., concurring).
[fn3] Page 344
The Court refers to two incidents involving potentially dangerous
attacks on women in prisons. Ante, at 335-336, n. 22. But these did not
involve trained corrections officers; one victim was a clerical worker and
the other a student visiting on a tour.
[fn4] Page 345
The irony is multiplied by the fact that enormous staff increases are
required by the District Court's order in Pugh v. Locke, 406 F. Supp. 318
(MD Ala. 1976). This necessary hiring would be a perfect opportunity
for appellants to remedy their past discrimination against women, but
instead the Court's decision permits that policy to continue. Moreover,
once conditions are improved in accordance with the Pugh order, the
problems that the Court perceives with women guards will be substantially
alleviated.
[fn5] Page 346
The appellants argue that restrictions on employment of women are
also justified by consideration of inmates' privacy. It is strange indeed
to hear state officials who have for years been violating the most basic
principles of human decency in the operation of their prisons suddenly
become concerned about inmate privacy. It is stranger still that these
same officials allow women guards in contact positions in a number of
nonmaximum-security institutions, but strive to protect inmates' privacy
in the prisons where personal freedom is most severely restricted. I have
no doubt on this record that appellants' professed concern is nothing but
a feeble excuse for discrimination.
As the District Court suggested, it may well be possible, once a
constitutionally adequate staff is available, to rearrange work assignments
so that legitimate inmate privacy concerns are respected without denying
jobs to women. Finally, if women guards behave in a professional manner at
all times, they will engender reciprocal respect from inmates, who will
recognize that their privacy is being invaded no more than if a woman doctor
examines them. The suggestion implicit in the privacy argument that such
behavior is unlikely on either side is an insult to the professionalism of
guards and the dignity of inmates.
MR. JUSTICE WHITE, concurring in No. 76-255 and dissenting
in No. 76-422.
I join the Court's opinion in Hazelwood School Dist. v.
United States, No. 76-255, ante, p. 299, but with reservations
with respect to the relative neglect of applicant pool data in
finding a prima facie case of employment discrimination and
heavy reliance on the disparity between the areawide percentage
of black public school teachers and the percentage of
blacks on Hazelwood's teaching staff. Since the issue is
whether Hazelwood discriminated against blacks in hiring after
Title VII became applicable to it in 1972, perhaps the Government
should have looked initially to Hazelwood's hiring practices
in the 1972-1973 and 1973-1974 academic years with
respect to the available applicant pool, rather than to history
and to comparative work-force statistics from other school
districts. Indeed, there is evidence in the record suggesting
that Hazelwood, with a black enrollment of only 2%, hired a
higher percentage of black applicants than of white applicants
for these two years. The Court's opinion, of course, permits
Hazelwood to introduce applicant pool data on remand in
order to rebut the prima facie case of a discriminatory pattern
or practice. This may be the only fair and realistic allocation
of the evidence burden, but arguably the United States should
have been required to adduce evidence as to the applicant pool
Page 348
before it was entitled to its prima facie presumption. At least
it might have been required to present some defensible ground
for believing that the racial composition of Hazelwood's
applicant pool was roughly the same as that for the school
districts in the general area, before relying on comparative
work-force data to establish its prima facie case.
In Dothard v. Rawlinson, No. 76-422, I have more trouble
agreeing that a prima facie case of sex discrimination was made
out by statistics showing that the Alabama height and weight
requirements would exclude a larger percentage of women in
the United States than of men. As in Hazelwood, the issue is
whether there was discrimination in dealing with actual or
potential applicants; but in Hazelwood there was at least a
colorable argument that the racial composition of the areawide
teacher work force was a reasonable proxy for the
composition of the relevant applicant pool and hence that a
large divergence between the percentage of blacks on the
teaching staff and the percentage in the teacher work force
raised a fair inference of racial discrimination in dealing with
the applicant pool. In Dothard, however, I am unwilling to
believe that the percentage of women applying or interested
in applying for jobs as prison guards in Alabama approximates
the percentage of women either in the national or state population.
A plaintiff could, of course, show that the composition
of the applicant pool was distorted by the exclusion of non-applicants
who did not apply because of the allegedly discriminatory
job requirement. But no such showing was made or
even attempted here; and although I do not know what the
actual fact is, I am not now convinced that a large percentage
of the actual women applicants, or of those who are seriously
interested in applying, for prison guard positions would fail to
satisfy the height and weight requirements. Without a more
satisfactory record on this issue, I cannot conclude that appellee
Rawlinson has either made out a prima facie case for the
invalidity of the restrictions or otherwise proved that she was
Page 349
improperly denied employment as a prison guard. There
being no showing of discrimination, I do not reach the question
of justification; nor, since she does not meet the threshold
requirements for becoming a prison guard, need I deal with the
gender-based requirements for contact positions. I dissent
from the Court's judgment in Dothard insofar as it affirms the
judgment of the District Court.
Page 350
