Employment Practices Decisions Archive: 1937 - 1995, [EMPLOYMENT-PRACTICES ¶6,077] , REFUSAL TO HIRE FEMALE LIFEGUARD IS SEX DISCRIMINATION, (Nov. 18, 1969), Equal Employment Opportunity Commission, (Nov 18, 1969)

[EMPLOYMENT-PRACTICES ¶6,077] REFUSAL TO HIRE FEMALE LIFEGUARD IS SEX DISCRIMINATION

Decision of Equal Employment Opportunity Commission,

No. 70-286, Case No. CL-68-4-921ENovember 18, 1969

Title VII--Civil Rights Act of 1964

Sex Discrimination--Refusal to Hire Female Lifeguard--Cleaning of Locker Room.-- In view of an employer’s failure to prove that females were unable to perform the duties of a lifeguard, it was reasonable to believe that the employer was guilty of sex discrimination by reason of its admitted refusal to hire a female to work as a lifeguard. A contention that a female would be unable to perform additional duties that included cleaning of male locker rooms and the pool area were without merit. If a male could clean the women’s locker room, a female could clean the men’s locker room.

Facts

Charging party alleged that employer committed an unlawful employment practice in violation of Title VII of the Civil Rights Act of 1964 by refusing to consider her for employment because of her sex (female).

Employer was engaged in the operation of a hotel. It employed 122 people, of whom 68 were females. The facts were not in dispute. On April 18, 1968, charging party, a high school graduate with certificates in Water Safety, Senior Life Saving, and First Aid, applied for the position of parttime lifeguard. Charging party states that she was informed by employer’s agent it did not employ female lifeguards.

Employer admits that it did not hire charging party because she is a female. Employer states that “most of its guests who use the pool are male and that the additional duties of the lifeguard are such that only male applicants could perform them.” Such additional duties include cleaning the locker rooms and the pool area. The Commission finds the employer’s assertion is without merit. It is obvious that, if a male can clean the women’s locker room, a female can clean the mean’s locker room.

From Text of EEOC Decision

Title VII requires that an employer judge a female applicant on the basis of her individual capacities to perform a particular job, rather than preconceived opinions as to the capacities of women as a class, except where sex is a bona fide qualification reasonably necessary for the normal operation of the job. As the Court of Appeals for the Fifth Circuit stated (Weeks v. Southern Bell Telephone Company, [59 LC ¶9213] 408 F. 2d 235 (1969):

We conclude that the principle of nondiscrimination requires that we hold that in order to rely on the bona fide occupational qualification exception an employer has the burden of proving that he has reasonable cause to believe, that is, a factual basis for believing that all or substantially all women would be unable to perform safely and efficiently the duties of the job involved.

The record reveals that Respondent herein has not met this burden. It has produced no evidence that all or substantially all females are unable to perform the duties of the job from which they are excluded. Accordingly, we must conclude that Respondent’s admitted discrimination does not fallwithin the 703(e) exception and is a violation of the Act.

Conclusion

Reasonable cause exists to believe that Respondent is committing an unlawful employment practice in violation of Title VII of the Civil Rights Act of 1964, as alleged.