Betty Jane ROBERTS, Plaintiff-Appellant, v. the UNION COMPANY, Defendant-Appellee
1973 U.S. App. LEXIS 6902 · 487 F.2d 387 · 6 Empl. Prac. Dec. (CCH) 8952 · 6 Fair Empl. Prac. Cas. (BNA) 1153
November 21, 1973 · Docket 73-1343
Headnotes
Generated summaries- Headnote 1
The plaintiff alleged that the Union Company paid women lower wages and refused to hire women in its men’s‑clothing department, conduct that Title VII bars.
- Headnote 2
The Union Company argued that its male‑only fitting policy was a BFOQ and therefore had to demonstrate that the restriction was justified.
- Headnote 3
The company claimed that only male employees could fit clothing without embarrassing customers, asserting that this requirement was essential to the department’s function.
- Headnote 4
The appellate court held that the district court erred in treating the plaintiff’s departure as a loss of standing, citing Huff and Parham as authority for former‑employee standing.
- Headnote 5
The court found that the district court’s dismissal on the ground of plaintiff’s lack of current employment was improper.
- Headnote 6
The court vacated the lower court’s dismissal and sent the case back for a Rule 23 analysis of numerosity, commonality, typicality, and adequacy of representation.
- Headnote 7
The appellate decision instructed the lower court to consider the legality of the hiring restriction under Title VII’s ban on sex discrimination.
- Headnote 8
The complaint asserted that the class comprises every female who has suffered or could suffer injury from the company’s wage and hiring discrimination.
- Headnote 9
The complaint alleges that the Union Company paid women lower wages than men for comparable work and refused to employ women in its men’s‑clothing department, invoking Title VII’s prohibition on sex‑based discrimination.
- Headnote 10
The Union Company contends that its men‑only clothing department is justified because employees must fit the garments, a task it argues requires male employees, invoking the BFOQ defense.
- Headnote 11
The court notes that the employer must produce evidence showing the limitation is essential and that no less discriminatory alternative exists, citing Supreme Court guidance on the BFOQ defense.
- Headnote 12
The appellate court held that dismissal of the plaintiff’s individual claim does not bar her from prosecuting the class action, relying on precedent that former employees may represent similarly situated workers.
- Headnote 13
The opinion reversed the lower court’s dismissal, emphasizing that lack of current employment does not automatically preclude class‑action standing.
- Headnote 14
The appellate court vacated the lower judgment and remanded for the district court to consider Rule 23 certification of the female‑employee class and the legality of the male‑only hiring policy.
Opinion
This is an appeal from the dismissal of a class action brought under Title VII of the Civil Rights Act of 1964, 42 U.S. C. § 2000e et seq. The complaint charges that appellee unlawfully discriminates on the basis of sex by paying female employees lower wages than those paid to men for equivalent work, and by its refusal to employ females in its men’s clothing department. The class that appellant asserts she represents is composed of all women who are the victims of this discrimination.
The company asserts that its clothing department practice is justified as a bona fide occupational qualification because persons working there are required to fit the elothing they sell, a task that may necessitate touching intimate parts of a customer’s body. The company avers that many of its customers would be embarrassed by having females fit their clothing.
The district court found that appellant’s lower wages were justified by her sales record and by other non-culpable factors, but did not make an express finding on the hiring policy issue and determined that appellant could not maintain the action because she had voluntarily left appellee’s employ and therefore lacked standing to represent the asserted class. The district court stated, “Since the plaintiff has not been de prived of the right which she endeavors to enforce on behalf of a class of female employees at the Union Company, and since she is not now working at the company, she is not a member of the proposed class and has no standing in court to represent it.”
We hold that the district court erred in dismissing the class aspects of the action. First, dismissal of appellant’s individual claim of discrimination is not dispositive, without more, of her standing to prosecute the class action. Huff v. N. D. Cass Company of Alabama, 485 F.2d 710 (5th Cir. 1973). See also Parham v. Southwestern Bell Telephone, 433 F.2d 421 (8th Cir. 1970). Second, the complaint charges not only that appellee has discriminatory classification and wage policies, but also that it has a discriminatory hiring policy and, therefore, avers that the asserted class is not limited to current female employees of appellee but encompasses all females who may have been injured by appellee’s discriminatory policies.
Accordingly, we vacate the judgment below and remand the case to the district court to consider whether the asserted class meets the requirements of Rule 23 of the Federal Rules of Civil Procedure. If so, the court should consider whether appellee’s males only hiring policy for its men’s clothing department violates Title VII of the Civil Rights Act of 1964.
The existence of a bona fide occupational qualification is an affirmative defense, and the burden is on appellee to show that its admittedly discriminatory hiring policy is justified. The Supreme Court has held that the existence of this defense is “a matter of evidence tending to show that the condition in question ‘is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise.’ ” Phillips v. Martin Marietta Corp., 400 U.S. 542, 544, 91 S. Ct. 496, 498, 27 L.Ed.2d 613 (1971) (emphasis added).
Reversed and remanded for proceedings not inconsistent with this opinion.