Wilson v. Southwest Airlines Co.
1981 U.S. Dist. LEXIS 12979, 517 F. Supp. 292, 26 Empl. Prac. Dec. (CCH) 31,949 (1981)
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Rule of Law:
An employer's deliberately cultivated marketing image, based on female sex appeal, does not establish femininity as a Bona Fide Occupational Qualification (BFOQ) under Title VII, as customer preference is only a valid consideration when it relates to the essential function of the business, not a manufactured branding theme.
Facts:
- In the late 1960s and early 1970s, Southwest Airlines was a new and financially struggling airline facing intense legal and competitive challenges.
- To distinguish itself, Southwest hired an advertising agency which recommended a marketing strategy targeting the predominantly male business traveler market.
- Southwest adopted a 'Love' theme, cultivating a corporate personality of 'feminine youth and vitality' and projecting an image of feminine spirit, fun, and sex appeal.
- As an integral part of this marketing campaign, Southwest implemented a policy of hiring only female flight attendants and ticket agents.
- These employees were dressed in revealing uniforms, such as hot-pants and high boots, and were featured heavily in advertisements promising 'tender loving care.'
- This marketing strategy proved highly successful, contributing to Southwest's significant financial growth and brand recognition as the 'love airline.'
- Gregory Wilson and a class of over 100 other male applicants were refused employment by Southwest for flight attendant and ticket agent positions because of their sex.
Procedural Posture:
- Gregory Wilson, representing a class of over 100 male job applicants, filed a lawsuit against Southwest Airlines in the United States District Court.
- The suit alleged that Southwest's refusal to hire males as flight attendants and ticket agents constituted sex discrimination in violation of Title VII of the Civil Rights Act of 1964.
- The case proceeded to a trial on the issue of liability.
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Issue:
Does an airline's marketing strategy, which is intentionally built on female sex appeal and has contributed to its commercial success, establish being female as a bona fide occupational qualification (BFOQ) for flight attendant and ticket agent positions, thereby justifying a refusal to hire men under Title VII of the Civil Rights Act of 1964?
Opinions:
Majority - Judge Patrick E. Higginbotham
No. An airline's marketing campaign does not make being female a bona fide occupational qualification (BFOQ) for flight attendant and ticket agent positions under Title VII. The court applied the two-part test from Diaz v. Pan American, which requires that a sex-based qualification be reasonably necessary to the 'essence' of the business operation. The essence of Southwest's business is the safe transportation of passengers, not the provision of entertainment or vicarious sexual recreation. The duties of flight attendants and ticket agents are primarily mechanical and non-sex-linked, such as ticketing, baggage handling, and ensuring passenger safety. While Southwest's 'love' image may be an important marketing tool, it is merely tangential to the airline's primary function. The court reasoned that customer preference can only justify a BFOQ where it is based on the company's inability to perform its primary function without discriminating, such as for authenticity in acting roles. Southwest failed to provide persuasive proof that its passengers would cease to fly the airline if males were hired. An employer cannot create a customer preference through its own discriminatory marketing and then use that preference to justify a BFOQ; business convenience and profitability are not defenses to unlawful discrimination under the 'business necessity' standard.
Analysis:
This decision significantly reinforces the narrowness of the Bona Fide Occupational Qualification (BFOQ) exception under Title VII. It establishes that an employer cannot 'bootstrap' a BFOQ defense by creating a discriminatory marketing campaign and then claiming that discrimination is necessary to maintain that brand image. The ruling clarifies that the 'essence of the business' test focuses on the core service provided (e.g., transportation), not on peripheral marketing themes or the pursuit of profit. This precedent makes it substantially more difficult for employers in service industries to justify sex-specific hiring policies based on customer preference or brand identity, forcing them to align their marketing with non-discriminatory employment practices.
