Little Forest Medical Center v. Ohio Civil Rights Commission

575 N.E.2d 1164, 61 Ohio St. 3d 607, 1991 Ohio LEXIS 2124, 60 Empl. Prac. Dec. (CCH) 41,894, 56 Fair Empl. Prac. Cas. (BNA) 1473

• Court: Ohio Supreme Court
• Decided: September 4, 1991
• Docket: No. 90-1052
• Status: Published

Opinions

Sweeney, J.

I

The present action was initiated pursuant to R.C. Chapter 4112. R.C. 4112.02(A) provides as follows:

“It shall be an unlawful discriminatory practice:

“(A) For any employer, because of the race, color, religion, sex, national origin, handicap, age, or ancestry of any person, to discharge without just cause, to refuse to hire, or otherwise to discriminate against that person with respect to hire, tenure, terms, conditions, or privileges of employment, or any matter directly or indirectly related to employment.” (Emphasis added.)

In Plumbers & Steamfitters Joint Apprenticeship Commt. v. Ohio Civ. Rights Comm. (1981), 66 Ohio St.2d 192, 196, 20 O.O.3d 200, 202-203, 421 N.E.2d 128, 131, this court concluded that the evidentiary standards applicable to a determination regarding a violation of Title VII of the Civil Rights Act of 1964 were likewise operable with respect to ascertaining whether a violation of R.C. Chapter 4112 has occurred. In this regard the court observed:

“ ‘Reliable, probative, and substantial evidence’ is not defined in the statute [i.e., R.C. 4112.05(G), which establishes the evidentiary standards for finding an unlawful discriminatory practice under R.C. Chapter 4112]. In previous cases, however, we have determined that federal case law interpreting Title VII of the Civil Rights Act of 1964, Section 2000(e) et seq., Title 42, U.S.Code, is generally applicable to cases involving alleged violations of R.C. Chapter 4112. Republic Steel v. Ohio Civil Rights Comm. (1975), 44 Ohio St.2d 178 [339 N.E.2d 658]; Weiner v. Cuyahoga Community College District (1969), 19 Ohio St.2d 35 [48 O.O.2d 48, 249 N.E.2d 907]. Cf. Youngblood v. Dalzell (1973), 6 EPD para. 8719 (S.D. Ohio, W.D.). Thus, 'reliable, probative, and substantial evidence’ in an employment discrimination case brought pursuant to R.C. Chapter 4112 means evidence sufficient to support a finding of discrimination under Title VII.”

Thus, the requisite burdens of proof regarding particular evidentiary issues established by the federal courts are relevant in determining whether there exists reliable, probative and substantial evidence of discrimination in violation of R.C. Chapter 4112.

The evidentiary issues and the respective burdens of the parties vary according to the nature of the discriminatory conduct in question. The appropriate standard is therefore dependent upon the criteria utilized by the employer to arrive at its employment decision. Where facially discriminatory employment criteria are applied, such practices constitute “disparate treatment” of a person entitled to protection under the law. Where facially neutral criteria are applied and the application of the criteria results in discriminatory consequences to members of the protected class, such practices are said to produce a “disparate impact” upon the affected individuals.

While the ultimate determination in both species of cases inevitably concerns the existence or nonexistence of unlawful employment discrimination, the legal inquiry is markedly different in several important respects. At the outset, it must be emphasized that the plaintiff bears the burden of establishing the existence of discriminatory motive only in cases involving disparate treatment. See Price Waterhouse v. Hopkins (1989), 490 U.S. 228, 245-246, 109 S.Ct. 1775, 1788, 104 L.Ed.2d 268, 285. In a disparate impact case, s discriminatory motive is irrelevant. Watson v. Fort Worth Bank & Trust (1988), 487 U.S. 977, 108 S.Ct. 2777, 101 L.Ed.2d 827. In the latter type of case, the plaintiff may prevail if she establishes that the employer has engaged in a specific practice which has excluded from employment members of a protected class. Id. at 994, 108 S.Ct. at 2788-2789, 101 L.Ed.2d at 845. This demonstration may be made through statistical evidence revealing a discrepancy between the composition of the workforce at issue and the composition of the pool of candidates for the specific employment in the relevant labor market. Id. at 997, 108 S.Ct. at 2791, 101 L.Ed.2d at 846.

Once the plaintiff has established a prima facie case of disparate impact, the employer has the burden of producing evidence of a “business justification” for its “neutral” hiring criteria. Wards Cove Packing Co., Inc. v. Atonio (1989), 490 U.S. 642, 659, 109 S.Ct. 2115, 2126, 104 L.Ed.2d 733, 753. The burden of persuasion remains with the plaintiff to show that the challenged criteria fail to serve, in a significant way, the employer’s legitimate employment goals. Id. at 659-660, 109 S.Ct. at 2126, 104 L.Ed.2d at 753-754. In describing the “business justification” standard, the court in Wards Cove, supra, remarked:

“ * * * The touchstone of this inquiry is a reasoned review of the employer’s justification for his use of the challenged practice. A mere insubstantial justification in this regard will not suffice, because such a low standard of review would permit discrimination to be practiced through the use of spurious, seemingly neutral employment practices. At the same time, though, there is no requirement that the challenged practice be ‘essential’ or ‘indispensable’ to the employer’s business for it to pass muster: this degree of scrutiny would be almost impossible for most employers to meet, and would result in a host of evils * * *.” Id. at 659, 109 S.Ct. at 2126, 104 L.Ed.2d at 752-753.

In contrast, where facially discriminatory hiring criteria are utilized by the employer, as in the present case, a different analysis is undertaken. Under such circumstances, the common-law “business justification” standard is inapplicable. See Internatl. Union, United Auto., Aerospace & Agricultural Implement Workers of America, UAW v. Johnson Controls, Inc. (1991), 499 U.S. -, 111 S.Ct. 1196, 113 L.Ed.2d 158. Instead, the only defense to facially discriminatory employment practices is that afforded under Section 703(e)(1) of the Civil Rights Act of 1964, as amended, Section 2000e-2(e), Title 42, U.S.Code. This section provides:

“(e) Notwithstanding any other provision of this subchapter, * * * it shall not be an unlawful employment practice for an employer to hire and employ employees * * * on the basis of his religion, sex, or national origin in those certain instances where religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise * * (Emphasis added.)

At the outset, it must be recognized that this statutory provision, inasmuch as it constitutes an exception to the public policy embodied in the Act as a whole to eliminate discrimination, is to be construed narrowly by the courts. See Dothard v. Rawlinson (1977), 433 U.S. 321, 334, 97 S.Ct. 2720, 2729, 53 L.Ed.2d 786, 800; Western Air Lines, Inc. v. Criswell (1985), 472 U.S. 400, 412, 105 S.Ct. 2743, 2752-2753, 86 L.Ed.2d 321, 322 (construing a similar provision in the Age Discrimination in Employment Act of 1967, Section 621 et seq., Title 29, U.S.Code). Moreover, it has been observed that the bona fide occupational qualification (“BFOQ”) exception is in the nature of an affirmative defense with respect to which the employer bears the burden of proof. 1 Sullivan, Zimmer & Richards, Employment Discrimination (1988) 105, Section 3.5.

The BFOQ defense to a facially discriminatory employment policy requires the employer to initially demonstrate that the hiring criteria utilized involve the “essence” of its business. Dothard, supra, 433 U.S. at 333, 97 S.Ct. at 2729, 53 L.Ed.2d at 800; Western Air Lines, supra, 472 U.S. at 413, 105 S.Ct. at 2751, 86 L.Ed.2d at 333; 1 Sullivan, Zimmer & Richards, Employment Discrimination, supra, at 111, Section 3.6.2. The “essence of the business” requirement is not satisfied merely because the facially discriminatory criteria further some peripheral function of the employer. In the context of gender discrimination, the Fifth Circuit Court of Appeals described the BFOQ defense as follows:

“We begin with the proposition that the use of the word ‘necessary’ in section 703(e) requires that we apply a business necessity test, not a business convenience test. That is to say, 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 sic.) Diaz v. Pan American World Airways, Inc. (C.A.5, 1971), 442 F.2d 385, 388.

Moreover, the employer asserting a BFOQ defense must also demonstrate that it had a factual basis for believing that all or substantially all members of the excluded gender would be unable to perform safely and efficiently the duties of the job involved, Johnson Controls, supra, 499 U.S. at---, 111 S.Ct. at 1207-1208, 113 L.Ed.2d at 178-179, or that it is impossible or highly impractical to differentiate the qualified from the unqualified in a nondiscriminatory manner. Weeks v. Southern Bell Tel. & Tel. Co. (C.A.5, 1969), 408 F.2d 228, 235; 1 Sullivan, Zimmer & Richards, Employment Discrimination, supra, at 119; Rossein, Employment Discrimination: Law and Litigation (1990) 2-31, Section 2.2(11).

It is the contention of appellee that it may utilize the less demanding “business justification” standard announced in Wards Cove v. Atonio, supra.1 However, as seen in Johnson Controls, supra, this test is unavailable where the employer applies facially discriminatory hiring criteria. See, also, Rossein, supra, at 2-30.² Instead, the more stringent requirements of the BFOQ defense obtain. We therefore conclude that where, in an action brought pursuant to R.C. Chapter 4112 challenging alleged facially discriminatory employment practices, the employer seeks to justify gender-specific hiring criteria on the basis that such criteria constitute a bona fide occupational qualification, the burden is upon the employer to prove (1) that the gender-based criteria involve the essence of the employer’s business, and (2) either that (a) all or substantially all members of the gender excluded by the employer are incapable of performing the job safely and efficiently, or (b) it is impossible or impractical to make determinations of each applicant’s qualifications in a nondiscriminatory manner.

Applying the foregoing standard to the case at bar, it is apparent that appellee has failed to establish the affirmative defense of a bona fide occupational qualification. Inasmuch as appellee concedes that its gender-based criteria are not predicated upon a valid factual determination that males are incapable of performing the employment responsibilities of a nurse’s aide, it bears the burden of establishing that (1) the privacy interests of its patients constitute a proper factual basis for restricting employment of nurse’s aides to females³ and (2) such privacy interests could not be furthered in a nondiscriminatory manner. Appellee has satisfied neither aspect of the test. While it may be conceded for the sake of argument that some female residents may object to the performance of intimate personal services by male nurse’s aides, this would be equally true of the performance of such services by female nurse’s aides for some of the male residents at appellee’s facility.

Appellee has therefore failed to establish a factual basis for its initial contention that the privacy interests of its patients are currently being served. If, in fact, the privacy interests of its patients are paramount, how does appellee explain its failure to take these interests into account with respect to the treatment of the male residents of its facility? The BFOQ defense demands more than the mere assumption that the avowed justification for appellee’s discriminatory practice (i.e., the privacy interests of the patients) is legitimate when its male residents have no option to choose nursing care by a member of their own gender. We are unwilling to assume that all or some of the male residents, if asked, would nevertheless opt for treatment by female nurse’s aides. Certainly appellee has adduced no evidence to support this conclusion.

Moreover, even if we were to indulge in the assumption that the privacy interests of its patients constitute a legitimate goal and that this goal is currently served, appellee has failed to demonstrate that the goal could not be furthered in a nondiscriminatory fashion (ie., assigning male nurse’s aides to male residents and non-objecting female residents and female nurse’s aides to female and non-objecting male residents).

In reversing the Ohio Civil Rights Commission and the common pleas court, the appellate court applied the Wards Cove “business justification” standard. As mentioned previously, this test applies only to gender-neutral policies which produce a disparate impact upon a particular gender. In the present case, the more stringent BFOQ statutory defense is applicable to appellee’s gender-based classification. Inasmuch as appellee does not dispute that male nurse’s aides are capable of performing the responsibilities entailed in such employment, it must establish that the hiring of male nurse’s aides not only would undermine the essence of the job involved but that it could not further these goals in a nondiscriminatory manner. The court of appeals, therefore, applied the wrong standard on review and must be reversed on this basis.

II

The court of appeals also concluded that the offer by appellee to complainant of employment as a maintenance man tolled the accrual of back pay because such employment was “substantially equivalent” to the position he was denied, citing Ford Motor Co. v. Equal Emp. Opportunity Comm. (1982), 458 U.S. 219, 232, 102 S.Ct. 3057, 3066, 73 L.Ed.2d 721, 732-733. The appellate court based its judgment not only on the view that the maintenance job was substantially equivalent, but also that the pay for that job was higher than for a nurse’s aide. This analysis is erroneous. The appellate court cited no evidence or reasoning in support of its finding of substantially similar employment. The goal of the complainant was to pursue a career in the health care field. While certainly there are aspects of employment as a nurse’s aide which may appear unpleasant, the job is relevant to career development in the health care industry. The same cannot be said of employment as a janitor. An extra $.70 per hour does not alter this fact. Accordingly, the holding of the court of appeals that the two positions constituted substantially similar employment must be reversed.

III

Appellee filed a cross-appeal challenging the denial of its motion for summary judgment and the subsequent affirmance thereof by the common pleas court and court of appeals. It is the contention of appellee that the denial of the motion was erroneous because it had established therein that the gender-based classification was justified and that no nondiscriminatory method of accomplishing its business objectives was possible. Appellant did not file any memorandum contra which included supporting affidavits.

Civ. R. 56(C) governs this issue. It provides:

“Motion and proceedings thereon. * * * Summary judgment shall be rendered forthwith if the pleading, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. No evidence or stipulation may be considered except as stated in this rule. A summary judgment shall not be rendered unless it appears from such evidence or stipulation and only therefrom, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, such party being entitled to have the evidence or stipulation construed most strongly in his favor. * * * ” (Emphasis added.)

Despite the absence of evidentiary materials adverse to the motion for summary judgment, it is beyond question that appellee was not entitled to judgment as a matter of law. Inasmuch as the law requires appellee to demonstrate that its gender-based classification involves the essence of the business and that this goal cannot be accomplished in a nondiscriminatory manner, it must appear from the motion that appellee had established both of these factors.

Appellee claims that the business interest served by its gender-based classification is the privacy rights of its patients. However, the undisputed facts indicate that there are approximately sixty male patients whose privacy rights have apparently not been considered by appellee as demonstrated by appellee’s exclusive employment of female nurse’s aides. There is nothing in the record to indicate that all of these residents, if given the choice, would opt for female aides. Given the state of the record when the motion was made, it was unnecessary to determine whether such goal could be furthered in a nondiscriminatory fashion since it had not been demonstrated that it had been “furthered” by appellee’s discriminatory method. There was thus no factual basis for this alleged business interest.

We therefore affirm the decisions of the court below affirming the denial of appellee’s motion for summary judgment.

IV

Appellee further contends on cross-appeal that the hearing examiner committed reversible error by refusing to compel discovery when appellee’s interrogatories were not answered and by failing to grant its motion in limine to exclude the testimony of the expert witness whose identity was the subject to which the interrogatories were directed. This argument is without merit. As an initial matter, the hearing examiner concluded that the information sought through the interrogatories had been provided by the opposing party. Appellee has failed to demonstrate that this determination was without foundation. Second, rulings on such motions are matters committed to the sound discretion of the administrative tribunal. They will not be reversed absent an abuse of discretion. There was no abuse of discretion present.

The judgment of the court of appeals is therefore affirmed in part, reversed in part, and the cause is remanded to the trial court for reinstatement of judgment.

Judgment affirmed in part, reversed in part and cause remanded.

Douglas, H. Brown and Resnick, JJ., concur. Moyer, C.J., Holmes and Wright, JJ., dissent.

1 . It is certainly not surprising that appellee would seek the application of standards embodied in the business justification standard. That standard merely requires that the employer produce evidence that the challenged employment practice “serves, in a significant way, the legitimate employment goals of the employer. * * * ” Wards Cove, supra, 490 U.S. at 659, 109 S.Ct. at 2125-2126, 104 L.Ed.2d at 753. As noted in Wards Cove, “ * * * there is no requirement that the challenged practice be ‘essential’ or ‘indispensable’ to the employer’s business * * Id. at 659, 109 S.Ct. at 2126, 104 L.Ed.2d at 753. In contrast, the BPOQ defense requires that a discriminatory practice concern the “essence” of the business. Dothard, supra. Moreover, under the “business justification” standard, the plaintiff is required to establish alternative nondiscriminatory methods of accomplishing the legitimate business goals of the employer. Wards Cove, supra, 490 U.S. at 660, 109 S.Ct. at 2126, 104 L.Ed.2d at 753. Under the BFOQ defense, the employer is required to demonstrate the unavailability of alternate nondiscriminatory means of selecting individuals capable of performing functions essential to the business. Weeks, supra.

2 . The discussion herein of the Wards Cove business justification standard is limited to our consideration of its elements, our observations concerning how these elements differ from the more stringent requirements of the BFOQ defense and our further determination that the Wards Cove standard is inapplicable to actions predicated upon “disparate treatment.” This opinion should not be interpreted as endorsing the application of the Wards Cove analysis to actions arising under R.C. Chapter 4112 predicated upon “disparate impact.”

3 . This privacy interest must rest on grounds more substantial than merely the individual preferences of business clients. In this regard, the court in Diaz, supra, observed:

“ * * * While we recognize that the public’s expectation of finding one sex in a particular role may cause some initial difficulty, it would be totally anomalous if we were to allow the preferences and prejudices of the customers to determine whether the sex discrimination was valid. Indeed, it was, to a large extent, these very prejudices the Act was meant to overcome. Thus, we feel that customer preference may be taken into account only when it is based on the company’s inability to perform the primary function or service it offers.” Id. at 389.

This is not to say that the privacy interests of patients could not be so interwined with the business goals of an enterprise that the burden of proving the BFOQ affirmative defense could not be satisfied. See Fesel v. Masonic Home of Delaware, Inc. (D.Del.1978), 447 F.Supp. 1346. However, Fesel is factually distinguishable from the case at bar. Fesel involved a nursing care facility serving thirty residents of which twenty-two were female and eight were male. In contrast, the facility operated by appellee is structured to accommodate two hundred fifty-six patients. The nursing home in Fesel employed six or eight nurse’s aides while appellee employs sixty-seven. The sheer size of the facility operated by appellee must be assumed to afford greater flexibility in work assignments. Inasmuch as appellee bears the burden of establishing the impracticability of adjusting work assignments to eliminate the necessity for its discriminatory practice, such burden will necessarily be more difficult where the facility offers greater options for accomplishing its business goals. Fesel is also distinguishable from the case at bar in its treatment of the alleged preferences of the male residents of the Masonic Home. In footnote five of the opinion, the federal district court remarked:

“The question of the preferences of the male guests at the Home was not explored at trial. However, since the male guests do presently accept care from female nurse’s aides, there does not appear to be any problem of nonconsenting male guests.” Id. at 1353.

We are unwilling to engage in any such assumption in the case sub judice. To do so would be inconsistent with the requirement which underlies the BFOQ defense that the defendant bear the burden of establishing every element thereof. The BFOQ defense requires the employer to demonstrate that the justification for its discriminatory practice is, in fact, legitimate. Absent evidence that the privacy interests of male residents have been accommodated by the present practice of having their personal needs met by female aides, the burden of proof on the issue has not been satisfied.