Religious Discrimination

Theories of Discrimination Title VII incorporates two theories of discrimination: disparate treatment and disparate impact. Disparate treatment claims involve allegations that an employer treated an employee differently because of the employee’s protected status (race, color, religion, sex, or national origin). Disparate treatment theory encompasses both individual claims by a single employee or systemic claims by a group of mistreated employees. Disparate impact claims involve allegations that an employer’s policies or practices that are seemingly neutral with regard to race, color, religion, sex, or national origin have a disproportionate negative impact (or “adverse impact”) on members of one of those groups. Disparate impact theory is most often used when the alleged discrimination affects many employees.

How plaintiffs in Title VII cases prove that their employer discriminated against them varies depending on the theory of discrimination. Because the ability to muster sufficient proof is critical to any claim, we discuss the methods of proof under each theory in more detail here.

There are several ways a plaintiff can prove a disparate treatment claim. 8  Title VII prohibits employers from making employment decisions based, even in part, on an employee’s protected status. An employee proves a disparate treatment claim if he can “demonstrate that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.” 9  This is often referred to as a “mixed-motives” claim, in which an employer’s decision is an amalgam of both prohibited and lawful motives. As discussed briefly below, the employer may limit an employee’s recovery in mixed-motives cases by proving that it would have made the same challenged employment decision even in the absence of the unlawful motive (i.e., the “same-decision defense”); nonetheless, if one of the factors in the employer’s challenged decision was the employee’s protected status, the employer has violated Title VII. Proving an unlawful motivating factor is easy in cases where the employer announces an express policy of disfavoring one of Title VII’s protected classes. Similarly, sometimes a supervisor or manager makes an oral or written statement admitting to treating an employee differently based on her protected status. These are examples of direct evidence of a discriminatory motive. The Gaskell v. University of Kentucky case, which appears later in this chapter, illustrates that direct evidence need not be as explicit as these examples.

Employers often discriminate without being so obvious about it. Employees frequently rely on circumstantial evidence to prove the employer’s discriminatory motive. Circumstantial evidence relies on reasonable inferences, rather than on admissions or policies, to prove the employer’s unlawful motive. The Supreme Court clarified that circumstantial evidence is just as useful as direct evidence to prove claims of employment discrimination. 10

Many Title VII plaintiffs face an uphill battle because proving an employer’s discriminatory motive requires the employee to “get in the head” of the employer. Without direct evidence or strongly suggestive circumstantial evidence, proving a disparate treatment case can be difficult, especially when the employer purposefully tries to conceal its discriminatory motive. As a result, courts have adopted a specialized burden-shifting method of presenting circumstantial evidence of a cover-up upon which many Title VII plaintiffs rely. In such suits, the plaintiff is typically not proceeding under a mixed-motives approach, but rather trying to show that the only credible motive is an unlawful one. The plaintiff first must show a prima facie case: a case that eliminates the most common nondiscriminatory reasons for the challenged employment decision (e.g., hiring, promotion, or termination) and creates a presumption of discrimination. The proof needed for a prima facie case varies with the nature of the challenged employment decision, but usually it is not onerous and is easily made. To establish a prima facie case to challenge a hiring decision, for example, the plaintiff must prove that she applied for the job and was minimally qualified for it, that she is a member of the protected class that she claims was the unlawful motivating factor the employer considered, that she was rejected, and that the employer continued to attempt to fill the job or filled it with someone who is not a member of the relevant protected class.

Once the plaintiff establishes a prima facie case, the employer must rebut the presumption of discrimination by producing evidence that the challenged employment decision was taken for legitimate, nondiscriminatory reasons. If the employer refuses or fails to produce such evidence,

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the plaintiff automatically wins. In response to a prima facie case challenging a hiring decision, for example, the employer might produce evidence that it rejected the plaintiff because she was late to the interview.

If the employer produces satisfactory nondiscriminatory reasons, the plaintiff must then show that the discrimination actually occurred, typically by showing that the employer’s reasons were a mere pretext for discrimination. For example, she might show that the employer has hired men for similar positions despite their tardiness for an interview.

The method of proving a disparate impact claim is more straightforward because it does not require proof of the employer’s motive. Instead, disparate impact focuses on results. If a policy or practice—for example, a height, weight, or high school diploma requirement for hiring or a written test for hiring or promotion—results in an adverse impact on a protected group, the employer may have violated Title VII, even though the requirement is neutral as to Title VII’s protected classes and the employer had no specific desire to discriminate against the affected employees. A prima facie case of disparate impact involves showing that the challenged, facially neutral practice has an adverse impact on the plaintiff’s race, color, religion, sex, or national origin. Adverse impact is usually established by statistical evidence showing that the practice results in disproportionately harsher outcomes for the protected class. For example, a plaintiff may show that a standardized test that the employer uses to screen candidates for promotion has a disproportionately lower pass rate for individuals of a particular national origin than for others, or that a minimum height requirement screens out proportionally many more women than men. If the plaintiffs show a disparate impact, the employer loses unless it demonstrates that the challenged practice is job-related for the position in question and consistent with business necessity. For example, the employer might show that its promotion test really predicts effective job performance and that effective performance in the relevant job is necessary for its operations. Even if the employer makes this demonstration, the plaintiffs have another option: to show that the employer’s legitimate business needs can be advanced by an alternative employment practice that is less discriminatory than the challenged practice. For example, the plaintiffs might show that the employer’s legitimate needs can be met by a different promotion test that has less adverse impact on the protected group. If the employer refuses to adopt this practice, the plaintiffs win.

The following Gaskell case involves a mixed-motives claim of disparate treatment on the basis of religion, in which the court must sort out the plaintiff’s evidence of a discriminatory motive and the defendant’s evidence that it was motivated by nondiscriminatory reasons.

Gaskell v. University of Kentucky 2010 U.S. Dist. LEXIS 124572 (E.D. Ky. Nov. 23, 2010)

In 2007, the University of Kentucky (UK) commenced a search for the founding director of its new astronomical observatory. Martin Gaskell applied for the position and, initially, was regarded by the Search Committee as the leading candidate. He was far more qualified and experienced than any of the other applicants. At the time of his application, Gaskell worked at the University of Nebraska–Lincoln (UNL), where he had secured funding for, had overseen the design and construction of, and eventually ran the student observatory.

The Search Committee conducted an initial round of phone interviews with Gaskell and several other candidates. Following the phone interviews, the committee ranked Gaskell first among the candidates.

Gaskell’s candidacy hit some snags, though. When Michael Cavagnero, the Chair of the Department of Physics & Astronomy and a member of the Search Committee, contacted Gaskell’s supervisor at UNL, he learned that Gaskell had caused some conflict at UNL because he was sometimes obstinate. In addition, members of the Search Committee discovered articles, lecture notes, and public statements by Gaskell revolving around the theme of “Modern Astronomy, the Bible, and Creation.” These raised concerns that Gaskell was a “creationist.” Several Search Committee members perceived that Gaskell blended religious thought with scientific theory, which they believed would adversely affect his ability to perform the outreach functions of the job.

Cavagnero again contacted Gaskell’s supervisor at UNL and asked him whether Gaskell’s personal religious beliefs had interfered with his duties in the classroom and in the community at UNL. According to the supervisor, a handful of students had mentioned in their teacher evaluations that it was refreshing to have a professor who believed in God, but that otherwise, Gaskell’s views on religion had not interfered with his work.

Cavagnero also asked some of his colleagues to read Gaskell’s work to determine if it was “good science.” Notably, members of the UK Biology Department participated in this review and determined that Gaskell’s writing included scientific

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statements about evolution that showed a fundamental lack of appreciation for the scientific method and for well-established scientific principles. The biologists ultimately told Cavagnero that they would not work with one of “these types of individuals” if he was hired to direct the observatory.

UK ultimately hired Timothy Knauer, a former student and employee of UK’s Department of Physics and Astronomy. Although UK concedes that Gaskell had more education and experience, it contends that it hired Knauer because he demonstrated more of the qualities that UK wanted in its Observatory Director.

Gaskell sued UK claiming that he was not hired because of his religion in violation of Title VII. Both parties moved for summary judgment.

Forester, Senior Judge

Title VII of the Civil Rights Act of 1964 provides that “[i]t shall be an unlawful employment practice for an employer . . . to discharge any individual, or otherwise discriminate against an individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual’s . . . religion.” The term “religion” is defined to include “all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s . . . religious observance or practice without undue hardship on the conduct of the employer’s business.”

As in any other discriminatory discharge or refusal to hire case, the plaintiff can establish that he was discharged or not hired on the basis of his religion through direct or indirect means. Direct evidence is evidence which, if believed, “requires the conclusion that unlawful discrimination was at least a motivating factor in the employer’s actions.” Direct evidence “does not require the factfinder to draw any inferences in order to conclude that the challenged employment action was motivated at least in part by prejudice against members of the protected group.” Evidence which in and of itself suggests that the person or persons with the power to hire, fire, promote, or demote the plaintiff were animated by an illegal employment criterion amounts to direct proof of discrimination. Remarks to the effect that “I won’t hire you because you’re a woman,” or “I’m firing you because you’re not a Christian,” are obvious examples of direct evidence of discrimination. However, other, less obvious remarks, have been found to be direct evidence of discrimination. Remarks and other evidence that reflect a propensity by the decisionmaker to evaluate employees based on illegal criteria can suffice as direct evidence of discrimination even if the evidence stops short of a virtual admission of illegality. Proof of this nature supports the inference that a statutorily prescribed factor such as religion was at least a motivating factor in the adverse employment action at issue.

If there is no direct evidence of discrimination, then courts rely on the framework established in the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this framework, the plaintiff carries the burden of proving by a preponderance of the evidence a prima facie case of discrimination. If the plaintiff is able to prove a prima facie case, then the burden shifts to the defendant “to articulate some legitimate, nondiscriminatory reason for the employee’s rejection.” If the defendant is able to carry this burden, then the plaintiff must prove by a preponderance of the evidence that the legitimate reasons offered were not true reasons but were a pretext for discrimination.

UK argues that it hired a different candidate for the Observatory Director for reasons that have nothing to do with Gaskell’s religion. Because Gaskell has failed to show by a preponderance of the evidence that UK’s reasons were a pretext for discrimination, UK contends that, based on McDonnell Douglas analysis, Gaskell’s claims must be dismissed.

Although UK argues that the McDonnell Douglas framework applies to this case, Gaskell contends that he has presented direct evidence of discrimination. The record contains substantial evidence that Gaskell was a leading candidate for the position until the issue of his religion (as Gaskell calls it) or his scientific position (as UK calls it) became an issue. Specifically, he points to the e-mail written by [Professor Thomas] Troland, the Search Committee Chair, to Cavagnero just days prior to the Search Committee’s vote to recommend Knauer for the position and thereby reject Gaskell. The e-mail, with the subject line “The Gaskell Affair,” states:

It has become clear to me that there is virtually no way Gaskell will be offered the job despite his qualifications that stand far above those of any other applicant. Other reasons will be given for this choice when we meet Tuesday. In the end, however, the real reason why we will not offer him the job is because of his religious beliefs in matters that are unrelated to astronomy or to any of the duties specified for this position. (For example, the job does not involve outreach in biology.) . . . If Martin were not so superbly qualified, so breathtakingly above the other applicants in background and experience, then our decision would be much simpler. We could easily choose another applicant, and we could content ourselves with the idea that Martin’s religious beliefs played little role in our decision. However, this is not the case. As it is, no objective observer could possibly believe that we excluded Martin on any basis other than religious. . . .

Certainly, Troland, who was chair of the Search Committee, participated in the interviews of the candidates, discussions of the committee, [and] e-mail exchanges involving the process played an obvious and important role in the decisionmaking process. As he explained to Patty Bender, the University Equal Employment Officer who investigated [a] complaint of religious discrimination submitted by [another member of the Search Committee]:

I was part of the entire process that led to this decision. I know what observatory committee members said in meetings and privately, not just their e-mail comments. I know that the university (not your office!) chose an applicant with almost no relevant experience over one with immense experience in virtually every aspect of the observatory director’s duties. And I know that this choice was made (to a significant extent) on grounds that have nothing to do with the job as advertised nor with the job as envisioned by our department.

His comments, if true, are direct evidence of religious discrimination.

Additional direct evidence of religious discrimination can be found in the deposition of Cavagnero, who stated that the debate generated by Gaskell’s website and his religious beliefs, was an “element” in the decision not to hire Gaskell. Also, [another professor] testified in his deposition that Gaskell’s “views of religious things in relation to reconciling what is known scientifically about how the world developed and what is represented in the Bible” was “a factor” in his decision not to support Gaskell. [Yet another] committee member stated in his deposition that religion was an “underlying theme in everything we discussed.”

Gaskell points to other evidence that suggests a propensity by the Search Committee to evaluate employees based on illegal criteria, including an e-mail by a Search Committee member stating: “Clearly this man is complex and likely fascinating to talk with—but potentially evangelical.” That same member also said, “If the job were solely about physics and astronomy and within the university I would strongly agree with you that Martin’s beliefs on biology and religion don’t matter a hoot and should not figure in the discussion at all.” The negative implication is clear: because the job was not solely about physics and astronomy within the university, Gaskell’s beliefs on biology and religion do matter.

Gaskell’s allegations, when considered together and taken as true, raise a triable issue of fact as to whether his religious beliefs were a substantial motivating factor in UK’s decision not to hire him. With the direct evidence of religious discrimination present in this case, it is not necessary for the Court to engage in the McDonnell Douglas burden-shifting framework.

***

Accordingly, based on Gaskell’s presentation of direct evidence of discrimination, UK’s motion for summary judgment will be denied. The Court now turns to Gaskell’s motion for partial summary judgment.

In 1991, Title VII of the Civil Rights Act was amended to include . . . Section 2000e-2(m). This section provides as follows: an employer commits an unlawful employment practice “when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice. [T]he purpose and effect of this section was ‘to eliminate the employer’s ability to escape liability in mixed-motives cases by proving that it would have made the same decision in the absence of the discriminatory motivation.’?” As the Sixth Circuit has stated, “in mixed-motive cases, a plaintiff can win simply by showing that the defendant’s consideration of a protected characteristic ‘was a motivating factor for any employment practice, even though other factors also motivated the practice.’?” The McDonnell Douglas burden-shifting framework does not apply to mixed-motive claims. . . . [T]o survive a defendant’s motion for summary judgment, a Title VII plaintiff asserting a mixed-motive claim need only produce evidence sufficient to convince a jury that: (1) the defendant took an adverse employment action against the plaintiff; and (2) “race, color, religion, sex, or national origin was a motivating factor” for the defendant’s adverse employment action.

There is no dispute that UK’s decision not to hire Gaskell was an adverse employment action. The issue, then, is whether Gaskell’s religion was “a motivating factor.” As set out above, Gaskell has presented direct and other evidence which, if believed, establishes that his religion was a factor in UK’s employment decision. However, UK has also come forward with other evidence that religion was not a motivating factor in its decision to hire Knauer. UK notes that the only question that was asked of Gaskell regarding his statement on evolution was posed by Cavagnero who was concerned that Gaskell would violate UK policy by representing his own opinion as that of the University should he link his university webpage to his personal webpage containing religious material. UK contends that the Search Committee did not act improperly when it considered Gaskell’s comments about evolution because Gaskell made those comments public not only during his 1997 lecture at UK, but also by posting his lecture notes on his webpage. UK also contends that it did not consider Gaskell’s religious beliefs, only his public comments that there were scientific problems with the theory of evolution. According to UK, the Search Committee was concerned that these publicly expressed views would impair Gaskell’s ability to serve effectively as Observatory Director.

UK’s motivation for its decision not to hire Gaskell is very fact intensive and difficult to determine at the summary judgment stage. Because UK has come forward with more than a scintilla of evidence to support its argument that religion was not a motivating factor in its decision, Gaskell’s motion for partial summary judgment will be denied.

Gaskell’s motion for partial summary judgment is denied; UK’s motion for summary judgment is denied; and this matter remains pending.

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Defenses Title VII provides employers several defenses, which either limit plaintiff’s recovery or completely excuse the employer from liability. The most important such defenses include:

1. Same-decision defense. Title VII allows an employer to limit a plaintiff’s recovery in a mixed-motives disparate treatment claim, if the employer proves that it would have taken the same action in the absence of the unlawful motivating factor. In other words, if an employer proves it would have made the same decision regardless of the employee’s protected status, the employee is not entitled to any personal recovery. The employer has violated the law and can be enjoined from continuing to do so, but the employee cannot recover money damages or be reinstated. An employee may still be entitled to recover his attorney fees for the attorney’s work on the successful portion of the mixed-motives claim. In the preceding Gaskell case, for instance, if a jury found that UK was motivated not to choose Gaskell as Observatory Director because of his religion, the same-decision defense might allow UK to escape paying money damages (e.g., back pay, compensatory, and punitive damages) to Gaskell. For example, UK might try to prove that it would not have hired Gaskell because of reports of his obstinacy at his previous employment, regardless of his religious beliefs.

2. Seniority. Title VII is not violated if the employer treats employees differently pursuant to a bona fide seniority system. To be bona fide, such a system at least must treat all employees equally on its face, not have been created for discriminatory reasons, and not operate in a discriminatory fashion.

3. The various “merit” defenses. An employer also escapes Title VII liability if it acts pursuant to a bona fide merit system, a system basing earnings on quantity or quality of production, or the results of a professionally developed ability test. Presumably, such systems and tests at least must meet the general standards for seniority systems stated above. Also, the EEOC has promulgated lengthy Uniform Guidelines on Employee Selection Procedures that speak to these and other matters.

4. The BFOQ defense. Finally, Title VII allows employers to discriminate on the bases of sex, religion, or national origin where one of those traits is a bona fide occupational qualification (BFOQ) that is reasonably necessary to the business in question. The BFOQ defense is applied to cases of disparate treatment, whereas the business necessity defense, which was discussed earlier, applies in disparate impact cases. The BFOQ defense does not protect race or color discrimination. As the following Berry case makes clear, moreover, the defense is a narrow one. Generally, it is available only where a certain sex, religion, or national origin is necessary for effective job performance. For example, a BFOQ probably would exist where a female is employed to model women’s clothing or to fit women’s undergarments. But the BFOQ defense usually is unavailable where the discrimination is based on stereotypes (e.g., that women are less aggressive than men) or on the preferences of coworkers or customers (e.g., the preference of airline travelers for female rather than male flight attendants). The defense also is unavailable where the employer’s discriminatory practice promotes goals, such as fetal protection, that do not concern effective job performance. In addition, as discussed in the Berry case, required or desired traits or characteristics cannot be the basis for a BFOQ defense unless those traits or characteristics are synonymous with a particular sex, religion, or national origin. Otherwise, an individualized evaluation of the trait or characteristic in each applicant is required.

Berry v. Great American Dream Inc. 88 F. Supp. 3d 1378 (N.D. Georgia 2015)

Amanda Berry was a dancer at Pin Ups, a facility providing live adult entertainment, which is owned by Great American Dream Inc. In December 2012, Berry learned she was pregnant. In February 2013, her employment at Pin Ups was terminated. Though she was nominally fired for leaving before the end of her shift and refusing to pay the standard “leave early fee” that was required when a dancer does not complete her entire shift, ultimately Berry claimed that she was fired for being pregnant, claiming that she was told by Pin Ups management personnel that she could not work there while she was pregnant.

Pin Ups has numerous image-related requirements to which its dancers must adhere. None of those requirements explicitly forbids dancers to be pregnant. And, in fact, a number of pregnant women had been employed as dancers at some point during their pregnancies. Nonetheless, the rules were intended to ensure that the entertainers had sufficient “sex appeal,” which was integral to Pin Ups’s image and service.

Berry sued Great American Dream under Title VII, as amended by the Pregnancy Discrimination Act. The Defendant moved for summary judgment, asserting that even assuming Berry was indeed discharged due to her pregnancy, the discharge was justified under the “bona fide occupational qualification” defense under Title VII.

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Thomas W. Thrash Jr., District Judge

Under Title VII of the Civil Rights Act, it is “an unlawful employment practice for an employer . . . to discharge any individual, or otherwise to discriminate against any individual with respect to [her] compensation, terms, conditions, or privileges of employment, because of such individual’s . . . sex.” The Pregnancy Discrimination Act (“PDA”)—which amended Title VII—defines the term “ ‘because of sex’ . . . [to] include . . . because of or on the basis of pregnancy, childbirth, or related medical conditions.” Thus, “[r]ather than introducing new substantive provisions protecting the rights of pregnant women, the PDA brought discrimination on the basis of pregnancy within the existing statutory framework prohibiting sex-based discrimination.” {Armstrong v. Flowers Hosp., Inc., 33 F.3d 1308, 1312 (11th Cir. 1994).}

Under Title VII, however, “an employer may discriminate 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.” UAW v. Johnson Controls, Inc., 499 U.S. 187, 200 (1991) (citing 42 U.S.C. § 2000e–2(e)(1)). The BFOQ exception recognizes that “classifications based on . . . sex . . . may sometimes serve as a necessary proxy for [a] neutral [job] qualification[ ] essential to the employer’s business.” Western Air Lines, Inc. v. Criswell, 472 U.S. 400, 411 (1985). However, to support a BFOQ defense, the “job qualification must relate to the ‘essence,’ . . . or to the ‘central mission of the employer’s business.’?” UAW, 499 U.S. at 200. At bottom, to establish a BFOQ defense, the Defendant must satisfy two elements. The Defendant must show that: (1) the sex-based qualification sufficiently “relate[s] to [the] ability to perform [a] dut[y] of the job,” Id., and (2) the particular duty goes to the essence of the Defendant’s business. [Berry] does not challenge the second element. She does not dispute that “sex appeal” is essential to the Defendant’s business. She argues, however, that a dancer’s pregnancy-status is not sufficiently related to that job requirement because pregnant women may still possess adequate sex appeal. Consequently, the Plaintiff argues, the Defendant must judge each pregnant dancer on an individual basis to determine if she has the requisite sex appeal, rather than dismissing pregnant dancers simply because they are pregnant.

Due to the Defendant’s lack of evidence on this issue, there is a genuine issue of fact as to whether a dancer’s pregnancy-status is sufficiently related to her sex appeal. Consequently, the Defendant is not entitled to judgment as a matter of law based upon its BFOQ defense. In responding to the Defendant’s Motion, the Plaintiff referred to the testimony of two of the Defendant’s managers: Angela Sheffield and Kelly Campbell. Both testified that many clients often prefer (and request) dancers with “thicker” bodies. Additionally, Sheffield testified that when a dancer becomes pregnant, she is generally not terminated, but rather asked to dance on the floor instead of on stage. In fact, Sheffield testified that one dancer continued her employment up until she was eight months pregnant.Conversely, in support of its Motion, the Defendant submits no evidence indicating that a dancer necessarily lacks the requisite “sex appeal” by virtue of her pregnancy. Indeed, in its Statement of Material Facts, the Defendant actually referred to Sheffield’s testimony where she noted that “each individual’s body is unique and has a different appearance under different circumstances, such that some may be able to meet Pin Ups’ standards of sex appeal at a given time (e.g., during pregnancy) while others may not be able to do so in the same circumstances.” Accordingly, in this case, there is a genuine issue of fact as to whether a dancer’s pregnancy-status is a proxy for “sex appeal.”

In response, the Defendant first argues that “sex appeal” may be a BFOQ. Technically, this is incorrect. For the Defendant to prevail on a BFOQ defense, it must establish that a particular sex—or, due to the Pregnancy Discrimination Act, a particular pregnancy-status—is itself a BFOQ. The statutory text makes this much clear: “it shall not be . . . unlawful . . . to . . . employ employees . . . on the basis of . . . sex . . . in those certain instances where . . . sex . . . is a bona fide occupational qualification.” [42 U.S.C. § 2000e-2(e).] Indeed, even the U.S. Supreme Court made clear that “the BFOQ exception was . . . meant to be an extremely narrow exception.” Dothard v. Rawlinson, 433 U.S. 321, 334 (1977) (emphasis added). However, although “sex appeal” may not be a BFOQ, it may be a particular job requirement whose connection to a dancer’s pregnancy status renders the latter to be a BFOQ.

The Defendant then argues that the Plaintiff “was let go because of her lack of sex appeal.” But this assertion does not support a BFOQ defense. The Defendant even acknowledged in its Brief that “[a] BFOQ defense begins with the assumption that [the Plaintiff’s] alleged reason [for the discharge] is the ‘real one’ . . . and offers a complete defense despite the apparent discrimination.” An argument for why the Plaintiff was discharged for another, legitimate reason—e.g., for lack of sex appeal—may be relevant to the issue of whether there was a discriminatory discharge to begin with. However, the Defendant only pursues a BFOQ defense in its Brief, and so the Court’s analysis is limited to that issue.

Conclusion

For these reasons, the Court DENIES the Defendant’s Motion for Partial Summary Judgment.