INTRODUCTION

Dothard v. Rawlinson is among the most important early cases applying Title VII of the Civil Rights Act of 1964 to gender. It was the first case that considered whether a seemingly neutral job requirement like height and weight could violate Title VII if it had a disparate impact on women in the workplace. It was also the first case to address Title VII's bona fide occupational qualification (“BFOQ”), which allows employers to use sex in employment decisions if it is “reasonabl[y] necessary … to the normal operation of that business or enterprise.”

Dothard involved employment in Alabama's state correctional facilities. The female plaintiffs in Dothard argued that the prison's height and weight requirements created a disparate impact by excluding 41 percent of women and only 1 percent of men. They also challenged the prison's categorical exclusion of women from contact positions, arguing that maleness was not a BFOQ for employment in Alabama's male prisons.

The U.S. Supreme Court found that Alabama's height and weight requirements violated Title VII because the state offered no evidence that the requirements were necessary to the job. The Court found, however, that sex was a BFOQ permitting Alabama to exclude women from contact positions in its maximum-security prisons. Acknowledging that its reasoning echoed the “romantic paternalism” that it explicitly forbade in Frontiero v. Richardson, the Court nonetheless balked at permitting women to act as prison guards. Describing the men's maximum security prison as a “jungle atmosphere,” the Court reasoned that female staff's “very womanhood” would undermine security in the prison and might incite sexual assault by prisoners “deprived of a normal heterosexual environment.”

The feminist judgment by Professor Maria Ontiveros, writing as Justice Ontiveros, challenges the legal and logical underpinnings of the Court's opinion. She criticizes the Court's disparate impact analysis for not providing adequate guidance when a challenged job requirement, like height and weight, is a proxy for sex. She is even more critical of the Court's BFOQ analysis, finding that it enshrines sexist stereotypes of women as the cause of sexual assault, permits de facto sex segregation in the workplace, and limits the self-determination of female workers. Ontiveros's opinion illuminates the sexism that is codified in Title VII's BFOQ and reified in U.S.