OLSEN v. MARRIOTT INTERN., INC., (Ariz. 1999)
75 F. Supp.2d 1052
Ralph P. OLSEN, Plaintiff, v. MARRIOTT INTERNATIONAL, INC., a Delaware
corporation, d/b/a/ Marriott's Camelback Inn, Defendant.
No. CIV97-1506PHX-ROS
United States District Court, District of Arizona
November 22, 1999
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Francis G. Fanning, Tempe, AZ, for Ralph P. Olsen.
Leigh Eric Dowell, Bryan Cave LLP, Phoenix, AZ, for Marriott
International, Inc.
ORDER
SILVER, District Judge.
In 1993, Ralph Olsen applied for a position as a massage therapist with
the Spa at Marriott's Camelback Inn. The Marriott refused to consider
Mr. Olsen for the position because he is male. Mr. Olsen filed this
action alleging that the Marriott's failure to hire him constitutes overt
sex discrimination in violation of Title VII, 42 U.S.C. § 2000e et
seq. The Marriott's defense is based on the argument that being female is
a bona fide occupational qualification for the percentage of massage
therapists necessary to satisfy customer requests for female therapists.
The parties have filed cross-motions for summary judgment and other
related motions.
PRELIMINARY EVIDENTIARY AND PROCEDURAL ISSUES
I. Motions to Strike
A. Report of the Marriott's Expert Witness Dr. Muriel McClellan
Olsen has filed a Motion to Strike the report of the Marriott's expert
witness, Dr. Muriel McClellan. As Plaintiff indicates, pursuant to
Federal Rule of Evidence 702, the Court is obliged to ensure "that an
expert's testimony both rests on a reliable foundation and is relevant to
the task at hand." Daubert v. Merrell Dow Pharmaceuticals, Inc.,
509 U.S. 579, 597, 113 S.Ct. 2786, 2799, 125 L.Ed.2d 469 (1993). This
"gatekeeping" requirements applies to all expert testimony. Kumho Tire
Co. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 1174-75, 143 L.Ed.2d 238
(1999). The Marriott argues that Dr. McClellan's opinions are reliable
"because they are drawn from her professional education and experience as
a practicing psychologist and mental health educator." The Court has
"considerable leeway in deciding in a particular case how to go about
determining whether particular expert testimony is reliable." Id. at
1176.
In opining that massage clients should be allowed to choose the gender
of their massage therapist, Dr. McClellan relies on her knowledge of
gender roles and the effects of sexual abuse. A portion of her opinion
contains general information about these topics, information such as
typical characteristics of sexual abuse survivors and the impact of
events that trigger memories of abuse. The supplemental expert report
submitted by the Marriott indicates that Dr. McClellan has taught about
gender and sexual abuse issues during a career of over thirty years as an
educator in the mental health field at places including Arizona State
University. In her role as an educator, she also has developed curricula
addressing gender and sexual abuse issues at the Union Institute in Ohio
and the Institute for Creative Change in Phoenix. In addition, she has
offered numerous continuing education workshops on sexual abuse and
gender issues. Dr. McClellan also has gained experience in addressing
sexual abuse and gender issues in her private practice during the past
twenty years. Given her knowledge and experience, the Court concludes
that Dr. McClellan is qualified to provide expert testimony regarding the
issues of sexual abuse and gender, and the general information she
provides on these topics is reliable.
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The Marriott has not established the reliability of other portions of
Dr. McClellan's expert report, including the studies she cites. In her
report, Dr. McClellan states:
Finkelhor, a leader in the sexual abuse field, has
compared studies on sexual abuse. He found the range
of women who have been abused to be anywhere from 7%
to 36% and 3% to 29% for men.
(McClellan Report at 3, Def.'s Exh. 5). McClellan does not provide a full
citation to Finkelhor's report or the studies he compares, nor does the
Marriott offer any evidence that the studies are reliable based on either
the factors set forth in Daubert, 509 U.S. at 593-94, 113 S.Ct. at
2796-97, or any other factors.[fn1] Her citation to Candice Pert's
"landmark work" at Georgetown Medical Center regarding kinesthetic
memories suffers from the same deficits -- incomplete citation and
no evidence regarding reliability.
The Marriott also has not established the reliability of Dr.
McClellan's opinion about the impact of either gender or sexual abuse on
the massage experience. The Marriott has offered no evidence indicating
that McClellan has studied, taught, conducted research, or written about
the subject of psychological effects of massage or that she has worked
with massage therapy patrons. See Diviero v. Uniroyal Goodrich Tire Co.,
919 F. Supp. 1353, 1355 (D.Ariz. 1996) (stating "that a court may exclude
an expert who does not have the appropriate [background] to offer a
helpful opinion with regard to controverted issues").
Rule 702 also requires that an expert's testimony "assist the trier of
fact to understand the evidence or to determine a fact in issue." This
standard is one of relevancy and requires the Court to assess "fit",
i.e. "whether expert testimony . . . is sufficiently tied to the facts of
the case that it will aid the jury in resolving a factual dispute."
Daubert, 509 U.S. at 591, 113 5.Ct. at 2796 (internal quotation
omitted). Even if the Marriott established that all the information in
Dr. McClellan's report is reliable, the report does not "assist the trier
of fact" in determining whether sex is a BFOQ for massage therapists at
the Marriott. Dr. McClellan opines that sexual abuse survivors should be
allowed to choose the gender of their massage therapists. However, the
Marriott is basing its BFOQ request on customer privacy, not choice.
Moreover, neither Dr. McClellan nor any of the Marriott's other witnesses
offer evidence of the percentage of sexual abuse survivors who seek
massages generally, or at the Marriott specifically. Absent such
information, a BFOQ cannot be justified on the need for choice by sexual
assault survivors. Moreover, even if the Marriott provided this
information, the evidence does not support a BFOQ for massage therapists
working with the remaining clients, who are likely, assuming the
reliability of the statistics McClellan cites, to be the vast majority of
the Marriott's Spa clients.
Finally, Dr. McClellan's citation to the study indicating that "any
form of touch can trigger kinesthetic memories of abuse", (McClellan Op.
at 4), is irrelevant due to the rationale underlying the Marriott's BFOQ
request. The Marriott argues that clients should be given a therapist of
the gender they prefer, but customers whose kinesthetic memories may be
awakened by touch do not have the memory of sexual abuse necessary to
request, in advance, a therapist of the sex opposite to that of their
abusers. The evidence also is irrelevant because
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Dr. McClellan does not indicate that gender plays a part in triggering
kinesthetic memories through touch, i.e., she offers nothing to indicate
that the memories would not be equally triggered by a massage from either
a male or female therapist.
Because McClellan's Report contains information that either has not
been sufficiently proven to be reliable or is irrelevant, Olsen's Motion
to Strike McClellan's expert report will be granted.
B. Declaration of Joanne DeMark-Paysnoe
Olsen also has filed a Motion to Strike the declaration of Joanne
DeMark-Paysnoe, senior coordinator for the Marriott's Spa. The
declaration sets forth the circumstances that caused the Marriott to
implement its sex-based hiring practice. Olsen argues that
DeMark-Paysnoe's declaration is not sworn because it contains no notary
jurat. However, as the Marriott indicates, the United States Code
provisions governing documentary evidence contain a section providing
that, whenever sworn declarations are permitted under United States law,
an unsworn declaration is also permitted if the declarant executing the
declaration within the United States includes the following: "I declare
(or certify, verify, or state) under penalty of perjury that the
foregoing is true and correct. Executed on (date). (Signature)."
28 U.S.C. § 1746. DeMark-Paysnoe's declaration complies with these
requirements.
The next basis Olsen asserts for striking the declaration is that
DeMark-Paysnoe makes statements about the development of the Marriott's
gender-based hiring policy though she is not in a management or
policy-making position. This argument for striking the entire declaration
fails because DeMark-Paysnoe declares that the statements in her
declaration are based on firsthand knowledge she obtained as a Spa
Coordinator. As stated below, Olsen will be granted the opportunity to
depose DeMark-Paysnoe if this case proceeds forward. If he does so, then
he can confirm or controvert DeMark Paysnoe's first-hand knowledge of the
matters stated in the declaration.
Third, Olsen argues that the Motion should be stricken because the
Marriott did not provide DeMark-Paysnoe's name to the EEOC during its
investigation, disclose her as a witness in any of its disclosure
statements, or present her declaration as part of the record upon filing
its original Motion for Summary Judgment. The Marriott's initial summary
judgment motion indicates that the Marriott originally did not consider
the issue of reasonable alternatives to be relevant -- it merely
stated that no reasonable alternatives exist due to "the intimate act
that requires privacy protection." (Def.'s Mot. for S.J. at 8). However,
as the Marriott indicates, the Court's Order denying the parties' initial
motions for summary judgment without prejudice to refile expressly
instructed the parties to address, in their renewed motions, the issue of
whether an employer must consider reasonable alternatives. The Order
further stated: "In addition, assuming such alternatives must be
attempted, the motions will set forth what, if any, reasonable
alternatives the Marriott considered or attempted to implement."
The Order did not address whether the parties could take additional
discovery to provide the requested information. Because the discovery
deadline had passed, the Marriott should have requested leave to engage
in additional discovery. Nonetheless, because the Court requested the
information, the Court concludes that it was reasonable for the Marriott
to obtain evidence necessary to comply with the request. The Court also
notes that the Marriott offered Olsen an opportunity to depose
DeMark-Paysnoe. The Court will deny Olsen's request to strike the
declaration of DeMark-Paysnoe but will grant Plaintiff leave to depose
DeMark-Paysnoe should this action proceed further.
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C. Portions of Olsen's Deposition Testimony
The Marriott has filed a Motion to Strike or Exclude from Consideration
portions of Olsen's deposition testimony. In addressing the pending
summary judgment motions, the Court found it unnecessary to consider
Olsen's deposition testimony. Therefore, the Marriott's Motion to Strike
will be denied as moot.
II. Motion for Summary Disposition
The Marriott also has filed a Motion for Summary Disposition of its (1)
Supplemental Motion for Summary Judgment and (2) Renewed Motion to Strike
the Testimony of Olsen. The Marriott requests summary disposition on the
ground that Olsen did not file a Response to these two Motions. However,
Olsen filed a renewed Motion for 5ummary Judgment on the same date that
Defendants filed their supplemental summary judgment motion. The
Cross-Motion suffices to set forth Olsen's position, particularly because
both parties were addressing questions posed by the Court. A separate
Response was not necessary. With respect to the request for summary
disposition of the Renewed Motion to Strike, the Court already has
concluded that the Motion to Strike is moot because the disputed
deposition testimony of Olsen was not considered. The Marriott's Motion
for Summary Disposition will be denied.
DISCUSSION
A motion for summary judgment may be granted if the evidence shows
"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." Fed. R.Civ.P.
56(c). To defeat the motion, the non-moving party must show that there
are genuine factual issues "that properly can be resolved only by a
finder of fact because they may reasonably be resolved in favor of either
party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct.
2505, 2511, 91 L.Ed.2d 202 (1986). In assessing a summary judgment
motion, the Court views the evidence in the light most favorable to the
nonmoving party and draws any reasonable inferences in the nonmoving
party's favor. Warren v. City of Carlsbad, 58 F.3d 439, 443 (9th Cir.
1995), cert. denied, 516 U.S. 1171, 116 S.Ct. 1261, 134 L.Ed.2d 209
(1996).
I. Is Gender a Bona Fide Occupational Qualification for the Position of
Massage Therapist at the Marriott's Camelback Inn Spa?
Title VII contains a broad proscription of sex discrimination in the
workplace.[fn2] Congress designed the statute to remove "artificial,
arbitrary, and unnecessary barriers to employment" that discriminate on
the basis of impermissible classifications, including sex. Griggs v. Duke
Power Co., 401 U.S. 424, 431, 91 S.Ct. 849, 853, 28 L.Ed.2d 158 (1971).
Marriott, however, argues that its refusal to hire Olsen due to his sex
falls within the following statutory exception to the prohibition of
sex-based employment discrimination:
[I]t 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 ["BFOQ"] reasonably necessary to the
normal operation of that particular business or
enterprise.
42 U.S.C. § 2000e-2(e)(1). The burden of establishing a BFOQ is on
the Marriott. See Int'l Union, United Auto., Aerospace & Agric.
Workers of Am., UAW v. Johnson Controls, Inc. ("Johnson Controls"),
499 U.S. 187, 206, 111 S.Ct. 1196, 1207, 113 L.Ed.2d 158 (1991); EEOC v.
Boeing Co., 843 F.2d 1213, 1214 (9th Cir.), cert. denied,
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488 U.S. 889, 109 S.Ct. 222, 102 L.Ed.2d 212 (1988).
A. What are the Legal Standards Governing the BFOQ Defense?
1. "Essence of the Business" Standard
The Supreme Court has repeatedly emphasized that the BFOQ defense is a
narrow exception to the general prohibition of sex discrimination
contained in Title VII. Johnson Controls, 499 U.S. 187, 201, 111 S.Ct.
1196, 1204, 113 L.Ed.2d 158; Dothard v. Rawlinson, 433 U.S. 321, 334, 97
S.Ct. 2720, 2729, 53 L.Ed.2d 786 (1977). The Court bases this conclusion
on both the language of the statute and its legislative history. See
Johnson Controls, 499 U.S. at 201, 111 S.Ct. at 1204. The Court has noted
that the statute contains several restrictive terms indicating that the
defense applies only in special situations. See id. In addition, the
Court has relied on the Equal Employment Opportunity Commission's
(EEOC's) consistent interpretation of the BFOQ defense as a narrow
exception to Title VII's sex discrimination ban. See Dothard, 433 U.S. at
334, 97 S.Ct. at 2729 (citing 29 C.F.R. § 1604.2(a)).
In accordance with the narrow scope of the BFOQ defense, a single-sex
job classification must relate to the "essence" or "central mission" of
the employer's business. Johnson Controls, 499 U.S. at 203, 206, 111
S.Ct. at 1205, 1207; Dothard, 433 U.S. at 333, 97 S.Ct. at 2729 (quoting
Diaz v. Pan Am. World Airways, Inc., 442 F.2d 385, 388 (5th Cir.), cert.
denied, 404 U.S. 950, 92 S.Ct. 275, 30 L.Ed.2d 267 (1971)). The "essence
of the business" inquiry focuses on whether both men and women possess
the skills or abilities required to perform the central tasks of the job
or the central mission of the employer. Johnson Controls, 499 U.S. at
201, 204, 111 S.Ct. at 1204, 1206.
Applying this focus on task-oriented skills in Johnson Controls, the
Supreme Court found the employer in violation of Title VII for excluding
women capable of bearing children from jobs involving exposure to lead at
a battery manufacturing plant. Id. at 206, 207, 111 S.Ct. at 1207, 1208.
Johnson Controls created its discriminatory policy to protect potential
fetuses from health risks related to lead exposure but the Court found
this an invalid basis for a BFOQ, concluding that "[f]ertile women . . .
participate in the manufacture of batteries as efficiently as anyone
else." Id. at 206, 111 S.Ct. at 1207. The job of making batteries, not
concern about the welfare of the next generation, constituted the
"essence" of Johnson Controls' business. Id. at 206, 111 S.Ct. at 1207.
2. "Essence of the Business" Standard When Privacy is the Basis of the
BFOQ Defense
Although the inquiry into whether sex constitutes a BFOQ usually
focuses on key job skills or the employer's central mission, courts also
have found an employee's sex to be a BFOQ in certain situations in which
a customer's or client's bodily privacy interests might otherwise be
compromised. See, e.g., Jennings v. New York State Office of Mental
Health, 786 F. Supp. 376, 380 (S.D.N.Y.) (privacy-based BFOQ exists for
position of treatment assistant at state hospital for the mentally ill, a
position involving intimate personal care such as bathing and toileting),
aff'd, 977 F.2d 731 (2nd Cir. 1992) (per curiam); Fesel v. Masonic Home
of Del., 447 F. Supp. 1346, 1351 (D.Del. 1978) (privacy-based BFOQ exists
for position of nurse at small retirement home, a position involving
dressing and bathing elderly nursing home patients), aff'd w'out
opinion, 591 F.2d 1334 (3rd Cir. 1979). Protection of client bodily
privacy is the rationale the Marriott offers in support of its argument
that sex is a BFOQ for the position of massage therapist at the Camelback
Inn in proportion to client requests for a female therapist.
Responding to the dissent in Johnson Controls, the Supreme Court stated
that privacy remains a valid inquiry in BFOQ
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analyses. 499 U.S. at 206 n. 4, 111 S.Ct. at 1205 n. 4. However, because
privacy interests were not at issue in Johnson Controls, the Supreme Court
provided no further explanation of how to tailor to the privacy context
the "essence of the business" standard generally focused on ability to
perform central job tasks or effectuate the employer's central mission.
The Ninth Circuit has had only one occasion to address a privacy-based
BFOQ. See Robino v. Iranon, 145 F.3d 1109 (9th Cir. 1998). In Robino,
officials at a women's prison in Hawai'i decided to implement a
female-only hiring policy for six of the forty-one corrections officer
positions at the prison, to protect inmates and prevent allegations of
sexual misconduct. 145 F.3d at 1110-11. The Ninth Circuit addressed the
BFOQ argument only in the alternative because it concluded that a policy
applicable to only six of forty-one corrections officer positions placed
so few restrictions on males' employment opportunities that the BFOQ
analysis was unnecessary. Id. at 1110. Moreover, in concluding that sex
constituted a BFOQ for the six positions, the Ninth Circuit deferred to
the professional judgment of Hawai'i prison officials. Id. at 1110-11.
Because the court was required to defer to prison officials' judgment, it
did not need to determine whether and how to tailor the "essence of the
business" standard to a privacy-based BFOQ analysis.
Examination of a number of privacy-based BFOQ cases decided prior to
Johnson Controls reveals that, when privacy is the issue, the "essence of
the business" inquiry focuses not on whether both men and women are
physically capable of performing job tasks central to the employer's
mission, but on whether performance of those central tasks intrudes upon
the privacy rights of opposite-sex third-parties, whether patients,
inmates, or clients. See, e.g., Gunther v. Iowa State Men's Reformatory,
612 F.2d 1079 (8th Cir. 1980) (detailing necessary job tasks of
correctional officers and concluding that the tasks implicate inmates'
privacy interests), implicitly overruled in part on other grounds by
Kremer v. Chemical Constr. Corp., 456 U.S. 461, 102 S.Ct. 1883, 72
L.Ed.2d 262 (1982); Backus v. Baptist Med. Ctr., 510 F. Supp. 1191, 1193
(E.D.Ark. 1981) (detailing necessary job tasks of nurses at retirement
home and concluding that the tasks implicate residents' privacy
interests), vacated as moot, 671 F.2d 1100 (8th Cir. 1982); Fesel, 447
F. Supp. at 1352-53 (same).
Cases decided following Johnson Controls indicate that the approach
taken in these earlier privacy-based BFOQ decisions remains valid. In a
1992 decision, a district court in New York took the same approach of
determining whether central job tasks intrude upon third-party privacy
rights. Jennings, 786 F. Supp. at 380-82. In a second 1992 decision, a
district court in Minnesota concluded that the footnote in Johnson
Controls confirming the ongoing validity of privacy-based BFOQ claims
suggests that privacy can be central to the mission of an employer.
Hernandez v. University of St. Thomas, 793 F. Supp. 214, 216 (D.Minn.
1992). As the district court explained, the Supreme Court stated that
safety considerations justified a BFOQ defense only when those
"considerations . . . went to the core of the employee's job
performance . . . [and] that performance involved the central purpose of
the enterprise." Hernandez, 793 F. Supp. at 216 (quoting
Johnson Controls, 499 U.S. at 203, 111 S.Ct. at 1206). Likewise,
privacy justifies a BFOQ defense only when privacy concerns go to the
core of employee job performance involving the central purpose of the
enterprise. Id.
The approach taken by courts both prior to and following Johnson
Controls appropriately adapts the "essence of the business" standard,
employed by the Supreme Court in Johnson Controls and by the Ninth
Circuit, to the privacy context. Accordingly, the Marriott must establish
that the core job functions of the massage therapist position intrude
upon or invade privacy interests and that a single-sex BFOQ is necessary
to protect those interests.
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Hernandez, 793 F. Supp. at 217; Jennings, 786 F. Supp. at 380.
3. Cases Illustrating Intrusions on Privacy
Most privacy-based BFOQ requests occur when employees in the position
at issue perform legitimate job duties requiring that they intrude upon
the privacy interests of a third party by, at minimum, viewing the third
party completely naked. Several courts analyzing privacy-based BFOQ
requests have described the interest in bodily privacy by quoting
language from a decision of the Ninth Circuit:
We cannot conceive of a more basic subject of privacy
than the naked body. The desire to shield one's
unclothed figure from view of strangers, and
particularly strangers of the opposite sex, is
impelled by elementary self-respect and personal
dignity.
Local 567, Am. Fed. of State, County, & Mun. Employees AFL-CIO v.
Michigan Council 25, AFSCME, 635 F. Supp. 1010, 1013 (E.D.Mich. 1986)
(quoting York v. Story, 324 F.2d 450 (1963), cert. denied, 376 U.S. 939,
84 S.Ct. 794, 11 L.Ed.2d 659 (1964)); Brooks v. ACF Industries, Inc.,
537 F. Supp. 1122, 1131 (S.D.W. Va. 1982) (same); Backus, 510 F. Supp. at
1193 (same). Often, employees working in positions that intrude on
privacy perform legitimate job duties involving an even greater degree of
intrusion than the viewing of a person of the opposite sex unclothed.
Such duties might include viewing the third party toileting or touching
the third parties' genitalia for legitimate purposes such as bathing.
See, e.g., Jennings, 786 F. Supp. at 382-83.
The decisions cited by the parties, and additional decisions located by
the Court, outline the contours of the privacy interests recognized by
courts. Treatment assistants at a state psychiatric hospital intrude on
patients' privacy by performing duties involving intimate personal care
such as "assisting patients with toileting, disrobing, showering and
cleaning their genitals," as well as stripping patients before placing
them into restraints and conducting bed checks of patients who sleep
naked or whose nightwear comes off during sleep. Id.; see also Healey v.
Southwood Psych. Hosp., 78 F.3d 128, 133 (3rd Cir. 1996) (BFOQ found when
duties of child care specialists at a psychiatric hospital included
accompanying children to the bathroom and occasionally bathing them);
Local 567, AFSCME, 635 F. Supp. at 1013 (BFOQ found when tasks of workers
at a state psychiatric institution include "personal hygiene care").
Prison guards intrude upon inmates' privacy interests by performing
duties entailing viewing members of the opposite sex unclothed, such as
guarding inmates in exposed toilet and shower areas and conducting
nighttime room checks. See Robino, 145 F.3d at 1111; Torres v. Wisconsin
Dept. of Health & Social Servs., 859 F.2d 1523, 1530 (7th Cir.
1988), cert. denied, 489 U.S. 1017, 109 S.Ct. 1133, 103 L.Ed.2d 194
(1989). As the Ninth Circuit stated: "[A] person's interest in not being
viewed unclothed by members of the opposite sex survives incarceration."
Robino, 145 F.3d at 1111.
Nurses intrude upon privacy interests of patients in a small retirement
home by performing duties including dressing and bathing elderly nursing
home patients, as well as changing pads used by incontinent patients and
assisting patients in use of toilets and bed pans, Fesel, 447 F. Supp. at
1353. Labor and delivery-room nurses intrude upon patients' privacy
interests because the nurses view constantly exposed genitalia and
perform duties including checking the cervix of a woman in labor and
sterilizing the laboring woman's vaginal area. Backus, 510 F. Supp. at
1193.
Janitors intrude on legitimate privacy interests by cleaning workplace
bathhouses wherein male employees undress, shower, and use urinals, at
least when the size of the workforce precludes cleaning while the
bathhouse is empty. Brooks, 537 F. Supp. at 1125; see also Norwood v.
Dale Maint. Sys., Inc., 590 F. Supp. 1410, 1417 (N.D.Ill. 1984) (BFOQ
found when janitors
West Page 1063
could view men urinating in washroom, in workplace where washroom was in
almost continuous use due to size of the workforce). Finally, plaintiffs
created a genuine issue of material fact about whether health club
employees intruded upon privacy interests of clientele by performing
duties involving exposure to partial or complete nudity in showers,
locker rooms, and exercise rooms, as well as touching of clients'
breasts, inner thighs, buttocks, and crotch areas while taking
measurements and providing instructions on equipment. EEOC v. Sedita,
816 F. Supp. 1291, 1295 (N.D.Ill. 1993).
Although all of these decisions involve legitimate job duties that
necessitated viewing or touching of genitalia, one court found a genuine
issue of material fact regarding existence of a BFOQ in a situation in
which viewing genitalia was only a possibility. A janitor challenged a
university's new rule of hiring only janitors of the same sex as the
residents in dormitories in which communal bathrooms are separated from
sleeping quarters by public hallways. Hernandez, 793 F. Supp. at 215.
Unlike nurses bathing nursing home residents, a dormitory janitor need
not view nudity to perform his or her job absent evidence that restrooms
are in continuous use. Nonetheless, the court concluded that a genuine
issue of material fact existed with respect to whether "intrusions on
legitimate privacy interests are an essential part of maintaining a
college dormitory with communal bathrooms." Id. at 218.
B. Is the Marriott's BFOQ Request Based on Privacy or Customer
Preference and Profitability?
1. Distinguishing Privacy From Customer Preference
The BFOQ requested in the instant action differs from privacy-based
BFOQs in all the cases set forth above. The Marriott doesn't argue that
each client should be provided with a massage therapist of the same sex
as the client due to the intrusion upon clients' privacy interests.
Rather, it argues that each client should be allowed to choose the sex of
their massage therapist due to the intrusion upon clients' privacy
interests. The Marriott does not quarrel with customers who select a
therapist of the opposite sex, whether male or female -- it has even
encouraged female clients to consider male therapists if no female
therapists are available at a requested time. Thus, the Marriott argues
for a BFOQ based on customer preference rather than privacy.
That customer preference, rather than privacy, underlies the Marriott's
argument is confirmed by the evidence the Marriott offers in support of
its request for summary judgment, evidence repeatedly describing the
issue as one of customer preference and business need. For example:
The Marriott Camelback Inn Spa employs massage
therapists based on actual and predictable customer
requests and preferences for gender of massage
therapists. The Spa does not have any blanket
prohibition against hiring male massage therapists,
but instead fills vacant positions with males or
females, depending on customer demand and business
needs.
(Wilfong Aff. at ¶ 7, Def.'s Exh. 12). Another defense expert
indicates:
[In a Spa Management magazine survey,] 72% of the
respondents preferred female therapists, while 18%
indicated no preference between female and male
therapists. . . . Guest preference thus influences the
hiring process of massage therapists. It is important
to hire in this fashion to maintain business.
(McCaffrey Op. at 6, Def's. Exh. 1). This expert adds:
The spa business is a referral business. If guest
requests are not honored, the ability to stay in
business is seriously jeopardized. Guest preference
must be taken into consideration and must influence
the hiring process of massage therapists. It is
important to hire in a manner that allows the space to
accommodate the guests' needs to maintain and develop
business.
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Since one is in the spa business to please and relax
people, it is essential to ask the customer if they
have a preference as to the gender of their
therapist. If a therapist is assigned without asking
the guest if the gender is suitable, the spa
encounters problems that result in lost business.
(Id. at 4).
The court has concluded that the report of the Marriott's expert
witness psychologist, Dr. McClellan, is inadmissible, but even if it was
admissible, the report merely confirms that customer preference, not
privacy from the opposite sex, is the basis for the Marriott's request.
After discussing the impact of past sexual abuse on the massage
experience, she states:
Given the great number of women and men who have been
sexually abused, and the devastating aftermath of such
experiences, having the right to select the gender of
the massage therapist seems imperative. The need for a
safe place where one is not exposed to the dominate
and submission process is imperative. The only way to
make that possible is for people to have choices.
Without choice there is a potential for the
reenactment of trauma.
(McClellan Op. at 5 (emphasis added), Def.'s Exh. 5). Dr. McClellan also
states that the majority of perpetrators of sexual abuse are men, thereby
indicating that the majority of sexual abuse survivors of both sexes may
prefer female massage therapists and a minority of sexual abuse survivors
of both sexes may prefer male massage therapists. (Id. at 3). Finally,
Dr. McClellan concludes, "It seems clear to me that one should be allowed
to choose the gender of a massage therapist." (Id. at 5).
Several of the stipulations contained in the parties' "Joint Stipulated
Statement of Undisputed Facts" ("JSSUD") further confirm the
customer-preference basis for the Marriott's BFOQ request. These
paragraphs, as numbered in the JSSUD, provide:
30. Plaintiff testified that if a person does not feel
comfortable with the gender of their therapist, that
is their right, and the whole idea of getting a
massage is to get a comfortable massage that is safe,
secure, and provides relaxation.
. . .
42. It is essential when booking a massage that the
client's preference and request of the gender of the
massage therapist be honored.
47. Plaintiff testified that he believes that patrons
and clients of a spa have a choice. They can choose
who they want to give them a massage. . . .
48. Plaintiff testified that he has "no
problem . . . . at all" with a client's right to
prefer a male or female massage therapist, or with
defendant's decision to honor the request of a client.
49. Plaintiff testified that if a client does not want
a particular gender of massage therapist, there is no
reasonable way to accommodate them. According to
plaintiff, anybody is entitled to state their
preference for gender.
(JSSUD (internal citations omitted)). All of these comments pertain to
customer preference, confirming the basis of the Marriott's request. An
additional paragraph in the JSSUD provides:
29. Plaintiff testified that one reason some
individuals choose a particular gender for massage
therapists is because they are homophobic.
(JSSUD (internal citations omitted)). This statement also supports the
customer preference rationale rather than the privacy rationale by noting
that some clients may prefer a therapist of the opposite sex.
In contrast to the BFOQ based on customer preference requested by the
Marriott, the privacy-based BFOQ decisions discussed above are grounded
in the determination that staffing a position entirely with members of
the same sex as that of the patient, client, or inmate is justified
because performing the position entails
West Page 1065
intrusion into the legitimate, narrowly-circumscribed, privacy interests
of those individuals. See, e.g., Robino, 145 F.3d at 1111; Healey, 78
F.3d at 133; Brooks, 537 F. Supp. at 1128; Fesel, 447 F. Supp. at 1351. A
BFOQ based on customer preference is inconsistent with a BFOQ based on
the conclusion that everyone filling a particular position must be a
member of one sex because core job requirements invade the privacy of
clients. The customer preference rationale also diminishes the argument
that privacy concerns require the use of therapists who are the same sex
as their clients -- if clients are allowed to choose, it is
unnecessary that the client and massage therapist be of the same sex.
Courts have consistently rejected requests for a BFOQ based on customer
preference. The Fifth Circuit rejected a BFOQ based on customer preference
in the very first decision to conclude that the focus of the BFOQ inquiry
must be on the "essence of the business". See Diaz v. Pan Am. World
Airways, Inc., 442 F.2d 385 (5th Cir.), cert. denied, 404 U.S. 950, 92
S.Ct. 275, 30 L.Ed.2d 267 (1971). In Diaz, Pan Am argued that being
female was a BFOQ for the position of flight attendant partly due to
customer preference. The district court agreed with Pan Am, and, as the
Fifth Circuit explains:
The trial court also found that Pan Am's passengers
overwhelmingly preferred to be served by female
stewardesses. Moreover, on the basis of the expert
testimony of a psychiatrist, the court found that an
airplane cabin represents a unique environment in
which an air carrier is required to take account of
the special psychological needs of its passengers.
These psychological needs are better attended to by
females.
Diaz, 442 F.2d at 387. In rejecting this customer preference rationale,
the Fifth Circuit relied in part on EEOC guidelines stating that "a BFOQ
ought not be based on `the refusal to hire an individual because of the
preferences of co-workers, the employer, clients or customers. . . .'"
Id. at 389 (quoting 29 C.F.R. § 1604.1(iii)). This regulation remains
in effect at 29 C.F.R. § 1604.2(a)(1)(iii).
In a provision subsequently quoted by the Ninth Circuit, the Fifth
Circuit added:
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.
Diaz, 442 F.2d at 389 (quoted in Gerdom v. Continental Airlines Inc.,
692 F.2d 602, 609 (9th Cir. 1982) (emphasis added), cert. denied,
460 U.S. 1074, 103 S.Ct. 1534, 75 L.Ed.2d 954 (1983)). The Fifth Circuit
ultimately concluded that being female was not a BFOQ for the position of
flight attendant.[fn3] See id. In accordance with Diaz, the Ninth Circuit
has consistently rejected a BFOQ based on customer preference for the
members of one sex. See Lam v. University of Hawai'i, 40 F.3d 1551, 1560
n. 13 (9th Cir. 1994); Gerdom, 692 F.2d at 609; Fernandez v. Wynn Oil
Co., 653 F.2d 1273, 1276-77 (9th Cir. 1981).[fn4]
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2. Distinguishing Privacy From Profitability
Closely related to its concerns about fulfilling customer preference
are the Marriott's concerns about the Spa's income. As indicated from the
Marriott's evidence quoted above, the company repeatedly refers to the
potential financial ramifications of eliminating its sex-based hiring
policy. One of the Marriott's experts opines, "If a therapist is assigned
without asking the guest if the gender is suitable, the spa encounters
problems that result in lost business." (McCaffrey Op. at 4, Def.'s. Exh.
1). The focus on revenue is further confirmed by the Marriott's practice
of encouraging clients to use a massage therapist of the opposite sex
when a therapist of the same sex is unavailable.[fn5]
The Marriott's focus on revenue is confirmed by the following portions
of the JSSUD:
51. If a spa was not allowed to take into account the
gender of the therapist to be hired, it would have a
severely adverse impact on revenues. To be successful
in the spa business, it is necessary for a spa to
consider gender in hiring massage therapists.
52. If a spa assigns a therapist without asking the
guest as to which gender is suitable, the spa will
encounter problems that result in lost business.
. . .
54. The spa business is a referral business. If
guests' requests are not honored, the ability to stay
in business will be severely jeopardized.
55. If a resort spa does not inquire as to the guest's
preference as to the gender of the massage therapist
and/or if the guest's requests are not honored, the
spa loses money, profits decrease, guests will go
elsewhere where their requests are honored, and the
spa will develop a bad reputation as a result of
word-of-mouth in the industry.
(JSSUD (citations omitted)).
Due to financial concerns, the Marriott argues that its sex-based
hiring practice is justified by business necessity. However, the defense
of business necessity is not available in disparate treatment cases such
as this. Jeldness v. Pearce, 30 F.3d 1220, 1230 (9th Cir. 1994); see also
Johnson Controls, 499 U.S. at 199, 111 S.Ct. at 1204. Only the
more-stringent BFOQ defense is available. Id.
In assessing whether a BFOQ defense exists, the cost of eliminating the
sex-based hiring policy is usually irrelevant. The extra cost of
employing members of the previously-excluded sex "does not provide an
affirmative Title VII defense for a discriminatory refusal to hire
members of that gender", with the possible exception of situations in
which the cost would be "so prohibitive as to threaten the survival of
the employer's business," Johnson Controls, 499 U.S. at 210, 111 S.Ct. at
1209. The Marriott does not set forth admissible evidence indicating that
a sex-based hiring policy would "threaten the survival" of its Spa.
Absent such evidence, "economic considerations . . . cannot be the basis
for a BFOQ -- precisely those considerations were among the targets
of the act." EEOC v. County of Los Angeles, 706 F.2d 1039, 1042 (9th
Cir. 1983) (considering age-based BFOQ), cert. denied, 464 U.S. 1073, 104
S.Ct. 984, 79 L.Ed.2d 220 (1984).
Because economic considerations are virtually never a factor, the Ninth
Circuit rejected the argument that being male was a BFOQ for an executive
position with an
West Page 1067
international corporation. Fernandez, 653 F.2d at 1274, 1276-77. The
corporation argued that some customers based in foreign nations would
refuse to transact business with a woman, but the Ninth Circuit concluded
that potential lost revenue did not justify sex discrimination. See id.
Accordingly, potential lost revenue does not justify the Marriott's
sex-based hiring practice.
3. Lack of Evidence that the Marriott's Customers' Preferences are
Based on Privacy
Even if a BFOQ could be recognized for customer preference based on
privacy, the Marriott has not offered evidence to create a genuine issue
of material fact with respect to whether privacy interests are the reason
its clients choose female massage therapists far more often than males.
The Marriott utilizes customer preference as a proxy for privacy concerns
on the assumption that privacy concerns are the basis for its customers'
preferences, but it offers little reliable evidence in support of this
assumption.
Some of the Marriott's evidence is contrary to the notion that its
customers' preferences, or those of massage clients generally, are based
on privacy concerns. For example, the evidence that men, as well as
women, prefer female massage therapists creates significant uncertainty
and ambiguity about whether a desire for privacy from the opposite sex is
the sole consideration motivating customer choice. (McCaffrey Op. at 2;
Def.'s Exh. 1; Wilfong Aff. at ¶ 4, Def.'s Exh. 12). The inadmissible
report of Dr. McClellan, proffered by the Marriott, confirms that
customer preference can be based upon several factors. Through Dr.
McClellan's report, the Marriott attempts to establish that "[b]oth men
and women have various views as to the gender of the therapist and which
gender makes them more comfortable and safe. Life experience can
contribute to these views and is a complex process." (McClellan Op. at
2, Def.'s Exh. 5).
Life experiences upon which customer preferences are based even could
include past experience with the female therapists employed by the
Marriott in a far greater percentage, i.e., the discriminatory practice
of hiring mostly female message therapists could be shaping customers'
future expectations. Courts consistently recognize that past
discriminatory practices can affect the racial or gender make-up of a
work force. See e.g., United States v. Paradise, 480 U.S. 149, 167-69,
107 S.Ct. 1053, 1064-65, 94 L.Ed.2d 203 (1987); Davis v. City and County
of San Francisco, 890 F.2d 1438, 1445 (9th Cir. 1989), cert. denied sub
nom., San Francisco Fire Fighters Local 798 v. City and County of San
Francisco, 498 U.S. 897, 111 S.Ct. 248, 112 L.Ed.2d 206 (1990) (NO.
90-248).
In its Response to Plaintiff's Renewed Motion for Partial Summary
Judgment, the Marriott argues that Olsen stipulated that guests have a
privacy interest giving them "the right to choose the gender of the[ir]
massage therapist". (Def.'s Response at 2-3). The Marriott overstates the
import of Plaintiff's stipulations. The JSSUD cited by the Marriott for
support contains only two paragraphs with potential relevance to the
issue of privacy. One of these provides:
28. Plaintiff testified that some people may be
self-conscious about their bodies, may have
cellulite, may have scars, and these are legitimate
reasons why they would not want to be nude with a
person of the opposite gender.
(JSSUD (internal citations omitted)).
Significantly, paragraph 28 is the only paragraph indicating that, for
one of the three listed reasons, some massage clients have "legitimate
reasons why they would not want to be nude with a person of the opposite
gender". Privacy from the opposite sex is the only type of privacy
interest that has been recognized by courts as a valid basis for a BFOQ.
The stipulation in paragraph 28 does not overcome the problem that the
Marriott is arguing for a BFOQ based on customer
West Page 1068
preference, not privacy, and relying on privacy as only one of several
bases for customers' requests. Even if the Marriott was arguing for a
BFOQ based on privacy, the stipulated paragraph quoted above indicates
only that "some" clients "may be self-conscious about their bodies, may
have cellulite, [and] may have scars" and that these are "legitimate
reasons why they would not want to be nude with a person of the opposite
gender." The statement that some clients may have the listed concerns
establishes neither that all massage clients have a privacy interest, nor
that some or all of the Marriott's clients have a privacy interest.
The other stipulated paragraph with potential relevance provides:
27. Plaintiff testified that there are legitimate
reasons why people would not want to be massaged by
the opposite sex.
This paragraph is conclusory; moreover, it indicates that clients may
have several legitimate reasons for not wanting a massage from a
therapist of the opposite sex -- other evidence provided by the
Marriott and discussed above indicates that privacy is only one of these
reasons.
The Marriott argues that courts deciding other BFOQ privacy cases have
assumed that a privacy interest exists whenever the naked bodies or
genitalia of patients, clients, or inmates are exposed to employees. As
will be discussed infra, the intrusion on privacy in the massage
context, if any, is far less. Moreover, in the privacy cases, the
employers made the decision that privacy concerns necessitated a
bright-line practice of hiring only employees of the same sex as the
customer, client, inmate, or patient with whom they worked. Neither
customer, client, inmate or patient was given a choice. In contrast, when
customer preference is accommodated, the choice of one sex or another
may, as the Marriott has established, be based on any number of grounds
-- both legitimate and illegitimate. Privacy cannot be assumed to be
the basis of a customer's choice.
4. Conclusion
The Marriott's argument, that being female is a BFOQ to the extent that
customers request female massage therapists, is based neither on
inability of men to fulfill core job functions nor on the notion that
core job functions intrude upon privacy interests and require assignment
of clients to massage therapists of the same sex. The Marriott's
request, if granted, would result in an unprecedented and improper
expansion of the BFOQ defense untethered by any objective limitations
related to job functions or privacy concerns and constrained only by
customer preference, whatever its basis. Courts, including the Ninth
Circuit, have rejected such expansive interpretations of the BFOQ
defense. This Court does so as well. Olsen's Motion for Summary Judgment
on the issue of liability for discriminatory failure to hire will be
granted, and the Marriott's Motion denied.
C. If the Preference of Some Customers is Based on Privacy, Has the
Marriott Established the Necessity of a BFOQ?
In the alternative to concluding that the Marriott's BFOQ defense fails
because it is based upon customer preference rather than privacy, the
Court also will determine whether the Marriott has established the
necessity for a privacy-based BFOQ.
Courts have employed either a three-factor or a two-factor test to
assess the validity of a privacy-based BFOQ. When stated in three parts,
the test requires the employer to establish that (1) it has a factual
basis for believing that it is necessary to staff the position at issue
with people of the same sex as patients, clients, or inmates, in order to
protect the privacy interests of the latter; (2) the asserted "privacy
interest is entitled to protection under the law," and (3) "no reasonable
alternatives exist to protect those interests other than the
gender[-]based hiring policy." Jennings, 786 F. Supp. at 380-81. See also
Sedita, 816 F. Supp. at 1295 (setting
West Page 1069
forth similar test). When stated in two parts, the test requires the
employer to establish that (1) legitimate privacy rights of patients,
clients, or inmates "would be violated by hiring members of one sex" to
fill the position at issue, and (2) "there are no reasonable alternatives
to a sex-based policy." Hernandez, 793 F. Supp. at 216. In setting forth
the respective tests, both Sedita, 816 F. Supp. at 1295. and Hernandez,
793 F. Supp. at 216, cite, among other decisions, Norwood, 590 F. Supp.
at 1415-16. Each test results in the same inquiry -- the first prong
of the two-factor test merely combines the first two prongs of the
three-factor test. The Court will proceed to apply the two-factor test.
1. Whether Core Job Functions of Marriott's Massage Therapists Intrude
Upon or Invade Privacy Interests
By honoring customer preference, the Marriott essentially admits that
privacy from the opposite sex is not its basis for assigning a massage
therapist. To the extent that privacy is even potentially a concern, the
Court notes that massages at the Marriott's Spa are significantly
different from the intrusions into privacy detailed in the cases set
forth above, with the possible exception of Hernandez, 793 F. Supp. at
217-18. The Marriott's description of the massage process confirms that
the legitimate job duties of its therapists do not entail viewing clients
while the latter are naked or using the bathroom. A client obtaining a
massage at the Marriott is covered by a sheet or towel. (JSSUD at ¶¶
16-17; Aff. of Marilyn Wilfong at ¶ 15, Def.'s Exh. 12). While
massaging a client, the therapist moves aside only a portion of the
client's sheet or towel to massage a particular area of the body, such as
a leg, an arm, or the back. (See Wilfong Aff. at ¶ 16). When the
therapist completes massaging one area, he or she covers the area once
again with the sheet or towel prior to moving to another area. (See
id.).
Although massage at the Marriott involves touching and manipulation of
intimate areas such as abdominals and inner thighs, (Wilfong Aff. at
¶ 16), the legitimate job duties of a massage therapist, unlike the
duties of the employees in the cases set above, do not include viewing or
touching female clients' breasts or either male or female clients'
genitalia. (JSSUD at ¶ 18). In fact, a document offered as evidence
by Defendants states that therapist "touching or undraping [of a
client's] genitals, perineum, . . . anus . . . or . . . breasts" is
"sexual abuse". (Sandy Fritz, Mosby's Fundamentals of Therapeutic
Massage at 32, Def.'s Exh. 18). The Marriott even requires its massage
therapists to request permission before massaging a client's buttocks.
(Wilfong Aff. at ¶ 11). The massage context is dramatically different
from a situation in which legitimate job duties necessitate washing a
patient's genitalia or viewing a third-party's genitalia while engaged in
tasks such as dressing or otherwise assisting the third party, cleaning
workplace bathhouses in continual use by third parties, or guarding
bathing and sleeping areas used by a third party.
Massage at the Marriott's Spa also differs significantly from the
privacy intrusions detailed above in another respect. The Marriott's
clients possess a far greater degree of choice and a far greater amount
of control than is possessed by the third parties in the cases set forth
above. Prison procedures, not inmate choice, govern when guards may view
unclothed inmates. Patients at a psychiatric hospital and elderly
residents of a nursing home do not necessarily have a choice about
whether to be bathed and, if so, when and under what circumstances.[fn6]
Employees using
West Page 1070
workplace bathrooms have some control over where and when to do so;
however, their choices regarding both place and time are limited. In
sharp contrast, the massage client chooses to expose, area by area,
portions of his or her body other than genitalia in order to obtain the
massage. Moreover, in addition to the rules forbidding genital touching,
a client may limit the extent of contact even further by instructing the
therapist not to massage certain areas. (See Fritz, Mosby's Fundamentals
of Therapeutic Massage at 29, Def.'s Exh. 18 (discussing client's right
to refuse therapist's services)). In fact, a client who so desires may
remain clad in underwear.
Although there are significant differences between the setting in which
therapists administer massages at the Marriott and the various
institutionalized care settings described above, the degree of difference
does not mean that massage entails no intrusion into bodily privacy. As
indicated above, massage at the Marriott involves touching and
manipulation of intimate areas such as abdominals, inner thighs, and,
with permission, buttocks. (Wilfong Aff. at ¶ 16). Moreover, as
discussed above, Olsen stipulated that:
27. Plaintiff testified that some people may be
self-conscious about their bodies, may have
cellulite, may have scars, and these are legitimate
reasons why they would not want to be nude with a
person of the opposite gender.
(JSSUD (internal citations omitted)). This stipulation indicates that
"some" people "may" have privacy interests.
Bodily privacy is inherently a personal matter, not one subject to
definitive line-drawing. See Local 567, 635 F. Supp. at 1014 n. 7. Thus,
the issue of whether massage at the Marriott entails intrusion into
bodily privacy is more appropriately resolved after a trial. Cf. Sedita,
816 F. Supp. at 1297-1298 (vacating an award of summary judgment to a
person denied employment on BFOQ grounds, and concluding that the privacy
issue should be resolved at trial). Genuine issues of material fact
remain with respect to whether massage at the Marriott intrudes upon some
clients' expectations of privacy.
2. Whether Reasonable Alternatives Exist For Protecting the Privacy of
Marriott's Massage Clients
In his Motion, Olsen argues that the Marriott does nothing to alter
customer preference for female massage therapists; rather, it perpetuates
the problem by asking clients whether they prefer to be scheduled with a
male or a female. Olsen further argues that the Marriott has not offered
customers the option of selecting
West Page 1071
massage therapists based on experience or qualifications rather than
gender. The Marriott argues that no reasonable alternative to
gender-based hiring exists because the service offered, massage, is an
intimate act requiring privacy protection. The Marriott also argues that
it has tried alternatives but found them unsuccessful.
Although the Ninth Circuit has not addressed the issue, courts
analyzing privacy-based requests for a BFOQ both before and after the
Johnson Controls decision regularly require the employer to prove there
are no reasonable alternatives to the sex-based hiring practice. See
Sedita, 816 F. Supp. at 1295; Hernandez, 793 F. Supp. at 216; Jennings,
786 F. Supp. at 380-81 & n. 5; Local 567, 635 F. Supp. at 1012,
1014; Norwood, 590 F. Supp. at 1415-16. Other courts require the employer
to establish inability to provide a specific type of reasonable
alternative, the rearrangement of either job duties or schedules.[fn7]
See Healey, 78 F.3d at 132; United States v. Gregory, 818 F.2d 1114, 1118
(4th Cir.), cert. denied, 484 U.S. 847, 108 S.Ct. 143, 98 L.Ed.2d 99
(1987); Hardin v. Stynchcomb, 691 F.2d 1364, 1370-71 (11th Cir. 1982);
Gunther, 612 F.2d at 1086; Carl, 883 F. Supp. at 1438 (internal quotation
omitted); Jones v. Hinds Gen. Hosp., 666 F. Supp. 933, 935 (S.D.Miss.
1987); Griffin v. Michigan Dept. of Corrections, 654 F. Supp. 690,
704-705 (E.D.Mich. 1982); Backus, 510 F. Supp. at 1197; Fesel, 447 F.
Supp. at 1351. The first group of cases cited, those requiring a showing
of no reasonable alternatives, have relied for support on the latter
decisions without limiting the evaluation of reasonable alternatives to
determination of whether job duties or schedules could be rearranged.
See, e.g., Norwood, 590 F. Supp. at 1416 (citing Fesel); Hernandez, 793
F. Supp. at 216 (citing Backus, 510 F. Supp. 1191) (additional citations
omitted).
In several of the decisions cited, the courts explained the rationale
for assigning this burden to the employers. The burden of showing no
reasonable alternative to a sex-based hiring practice is borne by the
employer in order to ensure that it is impossible to reconcile the
general nondiscrimination purpose of Title VII with the privacy rights of
clients. Norwood, 590 F. Supp. at 1416 (citing Fesel, 447 F. Supp. at
1351); see also Hardin, 691 F.2d at 1370-71; Gunther, 612 F.2d at 1086.
This burden is consistent with the narrow scope of the BFOQ defense as
interpreted by the Supreme Court in Johnson Controls and the focus on the
"essence of the business". Johnson Controls, 499 U.S. at 201, 203, 111
S.Ct. at 1204-1205. If privacy concerns can be addressed by means other
than sex discrimination, then a sex-based hiring policy is not necessary
in order for employees to perform core job tasks necessary to effectuate
the employer's central purpose or the "essence" of its business. See
Hernandez, 793 F. Supp. at 217; Jennings, 786 F. Supp. at 383. It is also
appropriate to place the burden of showing no reasonable alternative on
the employer because the BFOQ is an affirmative defense and the employer
has the burden of proof. See Johnson Controls, 499 U.S. at 206, 111
S.Ct. at 1207. For these reasons, this Court, like those cited above,
will require the Marriott to establish that no reasonable alternatives
exist to its policy of hiring based on sex.
Some of the decisions cited above provide examples of the alternatives
employers and courts have considered before concluding that gender was a
valid BFOQ. In Jennings, 786 F. Supp. 376, the defendant New York State
Office of Mental Health
West Page 1072
("OMH"), established, on a motion for summary judgment, that sex was a
valid BFOQ for the position of treatment assistant at one of its
hospitals. Due to patients' physical needs, the hospital could not
discover any alternative other than temporary rescheduling. Jennings, 786
F. Supp. at 385-86. However, the defendant offered evidence that
temporary reassignment of workers of the same gender would be highly
impracticable due to both the time this option would take and the
frequency with which it would be used. Id. at 385. Such temporary
reassignment would reduce the efficiency of operations and the hospital's
ability to assure the privacy of patients in emergencies. Id.
The plaintiffs in Jennings also made suggestions about alternatives.
Plaintiffs suggested that curtains be placed on observation windows of
bedrooms, but the court concluded that this would not address the privacy
needs of patients requiring either continual observation or assistance in
undressing. Id. at 386. The plaintiffs also suggested that patients be
given pajamas to wear to eliminate privacy concerns during bed checks.
However, the court concluded that mentally ill patients may not have the
capacity to control their behavior or to understand the ramifications of
choosing not to wear pajamas. Id.
In Fesel, 447 F. Supp. 1346, the defendant nursing home established at
trial that there was no reasonable alternative to the policy of hiring
only females as nurse s aides. Although some scheduling changes could be
made to reduce the time each nurses aide worked alone, an aide would
still have to work alone at least four hours per week. Id. at 1353. Due
to the small size of the nursing home and its staff, it was impossible to
adjust schedules or job tasks to hire a male aide who would not be
required to provide intimate physical care to female patients. Id. Sex
was a BFOQ in "these narrow circumstances". Id. at 1354.
In both its original and supplemental Motions for Summary Judgment, the
Marriott argued that no reasonable alternative to gender-based hiring of
massage therapists exists "because the essence of the service offered is
the intimate act that requires privacy protection." (Def.'s Mot. for
S.J. at 8; see also Def.'s Supp. Mot. for S.J. at 5). The Marriott's
argument assumes that privacy is the sole basis for the BFOQ it
requests, rather than customer preference that may stem, in some
instances, from privacy interests. Because the Marriott's request rests
on a customer preference rationale, it is necessary to determine, at
minimum, whether the Marriott considered reasonable alternatives to
distinguish clients with legitimate privacy concerns from those whose
preference is based on a different rationale, such as lack of familiarity
with the massage process.
The primary alternative Olsen suggests is that the Marriott stop asking
whether clients would prefer a male or female massage therapist when
scheduling massages and provide instead a brief description of the
therapists' qualifications. In response, DeMark-Paysnoe declares, "When
the Spa opened in 1989 and throughout the early 1990s," the Spa's staff
did not ask clients scheduling appointments whether they preferred a male
or female massage therapist. (DeMark-Paysnoe Dec. at ¶ 9). She
explains why the process changed:
[During the time that no inquiry was made into gender
preference], the Spa experienced countless complaints
by both men and women guests when they arrived for
their massage appointment and were not happy with the
gender of the massage therapist assigned to them. Many
women complained that they did not want to be massaged
by male therapists. Other women complained that they
did not want to be massaged by female therapists. We
experienced the same problems with the male guests.
. . . A number of the guests expressed that they were
upset the Spa did not care enough to even inquire
whether they had a gender preference. Virtually all of
these guests demanded that we
West Page 1073
immediately reassign them to the gender of therapist
of their choice so they could get their massage.
However, by the time the guests arrived for their
massage appointment, it was almost always too late
to . . . accommodate [them]. Many guest ended up
canceling their appointments.
. . .
Because of these numerous and consistent guest
complaints, the Spa's Coordinators and the Spa's
management decided that it was better for the guest,
the therapists and the Spa to find out if the guests
had a gender preference for their massage therapist at
the time they scheduled their massage appointments.
. . . After the Spa's Coordinators began asking guests
if they had a preference for [a] male or [a] female
therapist, the number of guest complaints and canceled
appointments dropped dramatically.
(Id. at ¶ 10-11, 13-14). She also sets forth other information the
Spa Coordinators are able to provide:
The Spa's Coordinators are further trained to answer
questions and/or further volunteer information about
the massage experience itself, particularly if they
believe or know that the guest never has had a massage
before, which often is the case. The Coordinators are
trained to describe the massage setting and the fact
that the guests remain draped by a sheet or towel,
except for that portion of their body that is being
massaged. The Coordinators also frequently tell the
guests that they may instruct the therapists where
they may and may not touch them or how deep[ly] or
soft[ly] to touch them. The Coordinators also
frequently provide information to guests on the
draping procedure and the option of the guests to wear
their undergarments during the massage, if they would
feel more comfortable.
(Id. at ¶ 17). The Marriott does not set forth any other alternatives
it has attempted.
The evidence the Marriott offers is insufficient to create a genuine
issue of material fact with respect to whether there are reasonable
alternatives to the Marriott's sex-based hiring practice. The declaration
of DeMark-Paysnoe establishes that not asking about gender caused some
problems, but it does not explain the extent of the problems with
specificity, merely indicating that complaints were "numerous" and
"countless" during a time period vaguely described as "the early 1990s."
More importantly, DeMark-Paysnoe does not indicate that the Marriott
tried to address the problem in any fashion other than asking clients the
gender they preferred in a massage therapist. As Plaintiff argues, the
Marriott could have attempted to offer information about therapists'
skills and experience. DeMark-Paysnoe declares that, due to call volume,
a scheduler cannot provide information on the background of all 47 of the
Spa's massage therapists. (DeMark-Paysnoe Dec. at ¶ 18). It seems
highly doubtful that all 47 therapists are available every day and all
the time; thus providing information of that quantity is unnecessary.
However the Spa could have attempted to provide a very brief explanation
of the experience of three or four therapists.
As quoted above, DeMark-Paysnoe sets forth other information that Spa
Coordinators can provide, including: the client remains draped by a sheet
or towel during the massage except for the portion of their body being
massaged, the client can instruct therapists about where they may and may
not touch, and the client can wear undergarments during the massage if
desired. (DeMark-Paysnoc Dec. at ¶ 17). This information might put a
client more at ease about obtaining a massage from a person of the
opposite sex, as indicated by the opinion of one of the Marriott's
experts, stating: "Women are extremely reluctant to have a male therapist
because they don't know the draping procedure." (McCaffrey Op. at 7,
Def.'s Exh. 1). However, DeMark-Paysnoe does not indicate that the
Coordinators are required to
West Page 1074
provide this information; rather, she indicates that the Coordinators only
provide this information in answer to questions or at their own
discretion, particularly if the client has never obtained a massage
before.
The Marriott fails to state that it requires its coordinators to
provide any other information that might educate their clients about the
massage process and increase their comfort with scheduling an appointment
with a massage therapist of the opposite sex. For example, one of the
Marriott's experts states that massage therapists are not always properly
educated in draping procedures. (McCaffrey Op. at 7, Def.'s Exh. 1). The
Marriott could provide training on draping procedures and then inform
clients that such training has been provided.
The fact that some information about the massage process is provided
orally on a discretionary basis does not establish that providing this
information on a standard basis, whether orally or in writing, is not a
reasonable alternative, particularly if the Marriott also provided
information about therapists' experience and stopped asking clients
whether they prefer a male or a female. More information about the
process, along with a reduced focus on gender and an increased focus on
qualifications, may alter the extent to which clients of both sexes are
willing to engage the services of a male, leaving, at most, a subset of
clients with particularized privacy concerns, perhaps including sexual
abuse survivors.
Because it has not shown that no reasonable alternatives exist, the
Marriott has failed to create a genuine, material fact issue on one of
the elements of the BFOQ defense. Olsen is entitled to summary judgment
on the claim of intentional employment discrimination on this basis in
the alternative to obtaining summary judgment on the basis that the
Marriott is not asking for a privacy-based BFOQ.
II. Retaliation
After the EEOC found cause to believe that the Marriott discriminated
against Olsen based on sex when it refused to hire him, the agency
invited the parties to enter a mediation process to attempt to settle
their dispute. (EEOC Determination at 2, Pl.'s Exh. 6). During the
pendency of this process, in August, 1996, Olsen attended a hotel job fair
at Scottsdale Community College and obtained a job application from
Marriott's Camelback Inn. Olsen filled out the application and mailed it
with a letter to Joy Wilfong on September 2, 1996. (Letter from Olsen to
Wilfong, Def.'s Exh. 8).
On October 8, 1996, John Town, then the executive director of The Spa
at the Camelback Inn, responded by thanking Olsen for his letter and
adding:
As you may know, settlement discussions into your
discrimination claim against Marriott's Camelback Inn
have commenced. As such, any further discussions about
an employment relationship should be held in abeyance
until such time [as] those discussions have been
completed.
(Letter from Town to Olsen, Pl.'s Exh. 7). Olsen alleges that Marriott's
refusal to consider his application during the pendency of settlement
negotiations constituted unlawful retaliation.
The relevant portion of Title VII, 42 U.S.C. § 2000e-3(a),
provides:
It shall be an unlawful employment practice for an
employer to discriminate against any . . . applicants
for employment . . . because he has made a charge,
testified, assisted, or participated in any manner in
an investigation, proceedings, or hearings under this
subchapter.
To make a prima facie case of retaliatory failure to hire, Olsen must
show that (1) he engaged in protected activity, (2) he suffered an
adverse employment decision, and (3) a causal link exists between his
protected activity and the adverse decision. Hashimoto v. Dalton,
118 F.3d 671 (9th
West Page 1075
Cir. 1997), cert. denied, 523 U.S. 1122, 118 S.Ct. 1803, 140 L.Ed.2d 943
(1998); see also Ruggles v. California Polytechnic State Univ.,
797 F.2d 782, 786 (9th Cir. 1986). Olsen has shown that he engaged in the
protected activity of filing a discrimination charge, and suffered an
adverse employment decision by Marriott to hold his application in
abeyance. However, he has not satisfied the third requirement of a causal
link. John Town avers, and his letter to Olsen states, that the
application was held in abeyance because settlement negotiations were
ongoing, not because Olsen had filed a charge.
Even if the evidence were sufficient for a prima facie showing, Olsen
has not created a genuine issue of material fact with respect to whether
the legitimate, nondiscriminatory reason offered by the Marriott for
holding the application in abeyance was pretextual. Ruggles, 797 F.2d at
786 (citing Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248,
256, 101 S.Ct. 1089, 1095, 67 L.Ed.2d 207 (1981)) (additional citation
omitted). Town avers that, during the contemporaneous settlement
proceedings, the Spa had requested the EEOC to obtain from Olsen a
clarification of his proposed counteroffer communicated on October 1,
1998. (Aff. of John Town at ¶ 4, Def.'s Exh. 4). In particular, the
Spa was unclear about whether Olsen's counteroffer included a demand that
he be placed in a massage therapist position. (Id.) Having not heard from
the EEOC by October 8, Town informed Olsen of the decision to hold his
application in abeyance pending the outcome of settlement negotiations. An
employer may engage in "[r]easonable defensive measures" during the
pendency of a Title VII action. United States v. New York City Transit
Auth., 97 F.3d 672, 677 (2nd Cir. 1996). Olsen offers nothing to
establish that this proffered reason is pretextual.
III. Punitive Damages
Both parties request summary judgment on the issue of punitive
damages. As amended by the Civil Rights Act of 1991, Title VII provides:
In an action . . . against a respondent who engaged in
unlawful intentional discrimination . . . the
complaining party may recover compensatory and
punitive damages as allowed in subsection (b) of this
section . . .
42 U.S.C. § 1981a(a)(1). The relevant portion of subsection (b)
provides:
A complaining party may recover punitive
damages . . . if the complaining party demonstrates
that the respondent engaged in a discriminatory
practice . . . with malice or with reckless
indifference to the federally protected rights of
[the complainant].
42 U.S.C. § 1981a(b)(1). Construing these provisions in a recent
decision, the Supreme Court concluded that Congress imposed two standards
of liability -- one for obtaining compensatory damages and a
second, higher standard for obtaining punitive damages. Kolstad v.
American Dental Ass'n, 527 U.S. 526, 119 S.Ct. 2118, 2124, 144 L.Ed.2d
494 (1999). Thus, the terms "malice" and "reckless indifference" refer
not to an employer's knowledge that it is engaging in discriminatory
conduct, but to an "employer's knowledge that it may be acting in
violation of federal law". Id. To act with "reckless indifference", an
employer must, at minimum, "discriminate in the face of a perceived risk
that its actions will violate federal law." Id. at 2125.
Providing examples of cases in which intentional discrimination does
not rise to a level warranting punitive damages, the Court states:
There will be cases . . . in which an employer
discriminates with the distinct belief that its
discrimination is lawful. . . . [T]he employer may
reasonably believe that its discrimination satisfies a
bona fide occupational qualification defense or other
statutory exception to liability.
Id. In such a circumstance, the employer knowingly relies on sex to make
an employment decision without acting with
West Page 1076
"reckless indifference" to a plaintiff's civil rights. See id.
In arguing that the Marriott should be liable for punitive damages,
Olsen relies on evidence that the Marriott continues to consider gender
in selecting its massage therapists and continues to ask its clients
whether they have a gender preference, despite the EEOC's finding of
reasonable cause to believe that the Marriott was engaging in sex
discrimination. Olsen has not established that the Marriott's conduct
after the EEOC finding is relevant to the issue of whether the Marriott's
act of discriminatory failure to hire Olsen justifies an award of
punitive damages. Furthermore, Olsen, the party with the burden on this
issue, offers no evidence that, at the time the Marriott refused to hire
him, it "discriminate[d] in the face of a perceived risk that its actions
violate[d] federal law." Id. at 2125. Therefore, the Marriott is entitled
to summary judgment on this issue.
Accordingly,
IT IS ORDERED granting Plaintiff's Renewed Motion to Strike the opinion
evidence of Defendant's expert, Dr. Muriel McClellan. (Dkt.# 57).
IT IS FURTHER ORDERED denying Plaintiff's Motion to Strike the
Declaration of Joanne DeMark-Paysnoe, (dkt.# 70), and granting Plaintiff
leave to take the deposition of DeMark-Paysnoe.
IT IS FURTHER ORDERED denying as moot Defendant's Renewed Motion to
Strike portions of Plaintiff's deposition testimony. (Dkt.# 59).
IT IS FURTHER ORDERED denying Defendant's Motion for Summary
Disposition of its (1) Supplemental Motion for Summary Judgment and (2)
Renewed Motion to Strike the Testimony of Plaintiff. (Dkt.# 68).
IT IS FURTHER ORDERED granting Plaintiff's Renewed Motion for Summary
Judgment on the claim of sex discrimination in violation of Title VII and
denying the remainder of Plaintiff's Motion. (Dkt.# 56).
IT IS FURTHER ORDERED granting Defendant's Supplemental Motion for
Summary Judgment on the retaliation claim and on the issue of punitive
damages. (Dkt.# 60).
IT IS FURTHER ORDERED that the parties are to inform the court by
Tuesday, December 15, 1999, whether or not they request this Court to
appoint a judge to conduct a settlement conference.
IT IS FURTHER ORDERED that the parties shall file a Proposed Final
Pretrial Order regarding the issue of damages on or before Wednesday,
January 12, 2000. Motions in Limine shall be filed on the same date.
[fn1] The Daubert factors are (1) whether the theory or technique has
been tested, (2) whether the theory or technique "has been subjected to
peer review and publication", (3) whether the technique has a high "known
or potential rate of error", and (4) whether the theory or technique is
generally accepted within a "relevant scientific community". Daubert, 509
U.S. at 593-94, 113 S.Ct. at 2796-97. In Kumho Tire Co., 119 S.Ct. at
1175, the Supreme Court concluded that these factors may be relevant when
examining the reliability of all types of expert testimony.
[fn2] 42 U.S.C. § 2000e-2(a)(1) provides:
It shall be an unlawful employment practice for an
employer to fail or refuse to hire . . . 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 . . . sex.
[fn3] At the hearing on the Motions for Summary Judgment, the Marriott
argued that Diaz is distinguishable because privacy was not the basis for
the requested BFOQ. However, as this Court already explained, privacy is
not the basis for the BFOQ requested by the Marriott either -- the
basis is customer preference.
[fn4] In noting that courts consistently have rejected a BFOQ based on
customer preference, this Court does not disregard or trivialize the
Marriott's emphasis on the importance of customer preference to its
success in the massage business. It is worth noting, however, that a
sex-neutral hiring policy does not necessarily preclude honoring any one
clients request for a therapist of one gender or another.
[fn5] Joanne DeMark-Paysnoe, a Spa Coordinator who schedules customer
appointments, declares:
If the requested gender of therapist is not available
for the date and time of the requested appointment,
the Spa's Coordinators are trained to ask the guests
if they would prefer a massage by the other gender of
therapist. The situation most frequently occurs when a
guest requests a female therapist but [none are]
available. In these situations, the Spa's Coordinators
are trained to encourage the guests to accept a
massage by the other gender of therapist
. . .
(DeMark-Paysnoe Dec. at ¶ 16).
[fn6] Closely related to the lack of choice and control is the fact that
many of the third parties in the cases set forth above are vulnerable to
exploitation and abuse by those employees who do not limit their touching
and viewing to that which is legitimate. Inmates as well as patients
involuntarily committed to psychiatric hospitals are not free to leave if
and when unwanted contact takes place. Patients in psychiatric hospitals
also may be vulnerable due to their mental illnesses. Patients at a
state-run psychiatric center "are just that, patients. They are
vulnerable and mentally ill." Jennings, 786 F. Supp. at 378. Elderly
nursing home patients may be vulnerable due to illness, frailty, or
decreased cognitive functioning.
Given the increased vulnerability of the resident population, a concern
about sexual abuse is frequently one of the real reasons animating a
privacy-based BFOQ. See Robino, 145 F.3d at 1110-11 (concluding that
prison was entitled to designate six guard positions as female-only to
protect female inmates's privacy and to prevent abuse by male guards);
Hernandez, 793 F. Supp. at 218 (in concluding that genuine fact issue
remained regarding whether being female is BFOQ for position as janitor
in women's dorm, court noted that "peeping incident heightened concern
about the presence of unescorted males in the dormitory"); Jennings, 786
F. Supp. at 386 n. 14 (finding BFOQ based on privacy, court noted that
psychiatric hospital had concerns about both sexual abuse of patients and
unfounded allegations of sexual abuse and concluded: "Given the isolated
setting of the bed check, requiring a [treatment assistant] of the same
gender as the patient to make the check protects both the patients and
the [treatment assistants]"); Backus, 510 F. Supp. at 1193 (finding a
BFOQ based on privacy and stating that, if a male nurse is present in a
delivery room, a female nurse also would have to be present to protect
the hospital from charges of molestation).
Although not entirely invulnerable, the vulnerability of the Marriott's
massage clients is drastically lower than that of the third parties in
these cases due to the Marriott client's ability to set limits on the
massage or stop the massage entirely and leave the unlocked room in which
the massage occurs if she feels uncomfortable. Their vulnerability also
is lower due to the strict rules to which massage therapists must
adhere.
[fn7] The Court has located one decision in which it is not clear whether
a court considered the burden of proof of reasonable alternatives, or
lack thereof, to be plaintiffs' or defendants' burden. The court
considered alternatives suggested by the plaintiff, and then considered
whether it could "ideate any reasonable scheme or accommodation" on its
own, but did not discuss which party had the burden of proof on this
issue. See Brooks, 537 F. Supp. at 1132.