1. What should be done if, as here, the public likes the employer’s marketing scheme?

2. Do you think the standards for BFOQs are too strict? Explain.

3. Should a commercial success argument be given more weight by the courts? How should that be balanced with concern for Congress’s position on discrimination?

Issue: Whether allowing only females to be flight attendants was a BFOQ.

Facts: A male sued Southwest Airlines after he was not hired as a flight attendant because he was male. The airline argued that being female was a BFOQ for being a flight attendant. Southwest reasons it may discriminate against males because its attractive female flight attendants and ticket agents personify the airline’s sexy image and fulfill its public promise to take passengers skyward with “love.” Also, the airline claims maintenance of its females-only hiring policy is crucial to its continued financial success.

Decision: The court disagreed. This Circuit’s decisions have given rise to a two step BFOQ test:

(1) Does the particular job under consideration require that the worker be of one gender only; and if so,

(2) Is that requirement reasonably necessary to the “essence” of the employer’s business.

Applying the first level test for a BFOQ to Southwest’s particular operations results in the conclusion that being female is not a qualification required to perform successfully the jobs of flight attendant and ticket agent with Southwest. Mechanical, nongender-linked duties dominate both these occupations. The ‘essence’ of Southwest’s business is to safely transport its passengers. Attractive women can be viewed as tangential.