|Dothard v. Rawlinson
[ Stewart ]
[ Rehnquist ]
[ Marshall ]
[ White ]
Dothard v. Rawlinson
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA
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 [p341] qualification" exception contained in § 703(e) of Title VII. [n1] 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 [p342] 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. [p343]
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 [p344] who easily maintain discipline, and so on. [n2] 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. [n3] 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. [p345]
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. [n4]
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 [p346] 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. [n5]
Although I do not countenance the sex discrimination [p347] 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.
1. 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. . . .
2. 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?
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).
3. 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.
4. 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.
5. 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 non-maximum 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.