Wilson 1981
Spencer Prather
This case presents the important question whether femininity, or more accurately female sex appeal, is a bona fide occupational qualification ("BFOQ") for the jobs of flight attendant and ticket agent with Southwest Airlines. Plaintiff Gregory Wilson and the class of over 100 male job applicants he represents have challenged Southwest's open refusal to hire males as a violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e et seq. The class further alleges that Southwest's published height-weight requirement for flight attendants operates to exclude from eligibility a greater proportion of male than female applicants.[1]
At the phase one trial on liability, Southwest conceded that its refusal to hire males was intentional. The airline also conceded that its height-weight restrictions would have an adverse impact upon male applicants, if actually applied. Southwest contends, however, that the BFOQ exception to Title VII's ban on sex discrimination, 42 U.S.C. 703(e), justifies its hiring only females for the public contact positions of flight attendant and ticket agent. The BFOQ window through which Southwest attempts to fly permits sex discrimination in situations where the employer can prove that sex is a "bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise." Id. 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." Defendant claims maintenance of its females-only hiring policy is crucial to the airline's continued financial success.
Since it has been admitted that Southwest discriminates on the basis of sex, the only issue to decide is whether Southwest has proved[2] that being female is a BFOQ reasonably necessary to the normal operation of its particular business. As the application of 703(e) depends, in large part, upon an analysis of the employer's "particular" business, it is necessary to set forth the factual background of this controversy as a predicate to consideration of Southwest's BFOQ defense. The facts are undisputed.
Defendant Southwest Airlines is a scheduled air carrier engaged in the transportation of passengers. Southwest's inaugural flight was June 18, 1971. It presently serves major cities in Texas, Oklahoma, Louisiana and New Mexico.
Southwest was incorporated in March of 1967 and filed its initial application with the Texas Aeronautics Commission ("TAC") in November of 1967 to serve the intrastate markets of Dallas, Houston and San Antonio. Southwest's proposed entry as an intrastate commuter carrier sparked a hostile reaction from the incumbent air carriers serving the Texas market. The airline's application to the TAC was bitterly contested and the original TAC decision to permit Defendant to begin serving Dallas, Houston and San Antonio was litigated for over four *294 years through a succession of state and federal courts. The legal controversy was not resolved until December of 1970, when the U.S. Supreme Court denied the incumbent air carriers' petition for a writ of certiorari. According to Southwest's Chairman Herbert Kelleher, the airline in the interim had lost a commitment from a major insurance company to purchase $3 million of preferred stock; had lost a commitment for the sale of aircraft necessary to commence operations; had lost $2 million in subscriptions for stock by individual investors; and had spent over $530,000 in legal fees litigating the issue of its right to commence operations, all as a result of the defensive tactics of Southwest's competitors. In December of 1970, Southwest had $143 in the bank and was over $100,000 in debt, though no aircraft had ever left the ground.
Barely intact, Southwest, in early 1971, called upon a Dallas advertising agency, the Bloom Agency, to develop a winning marketing strategy. Planning to initiate service quickly, Southwest needed instant recognition and a "catchy" image to distinguish it from its competitors.
The Bloom Agency evaluated both the images of the incumbent competitor airlines as well as the characteristics of passengers to be served by a commuter airline. Bloom determined that the other carriers serving the Texas market tended to project an image of conservatism. The agency also determined that the relatively short haul commuter market which Southwest hoped to serve was comprised of predominantly male businessmen. Based on these factors, Bloom suggested that Southwest break away from the conservative image of other airlines and project to the traveling public an airline personification of feminine youth and vitality. A specific female personality description was recommended and adopted by Southwest for its corporate image:
From the personality description suggested by The Bloom Agency, Southwest developed its now famous "Love" personality. Southwest projects an image of feminine spirit, fun and sex appeal. Its ads promise to provide "tender loving care" to its predominently male, business passengers.[3] The first advertisements run by the airline featured the slogan, "AT LAST THERE IS SOMEBODY ELSE UP THERE WHO LOVES YOU." Variations on this theme have continued through newspaper, billboard, magazine and television advertisements during the past ten years.[4] Bloom's "Love" campaign was given a boost in 1974-1975 when the last of Southwest's competitors moved its operations to the new Dallas/Fort Worth Regional Airport, leaving Southwest as the only heavy carrier flying out of Dallas' convenient and fortuitously named, Love Field.
Over the years, Southwest gained national and international attention as the "love airline." Southwest Airlines' stock is traded on the New York Stock Exchange under the ticker symbol "LUV". During 1977 when Southwest opened five additional markets in Texas, the love theme was expanded to "WE'RE SPREADING LOVE ALL OVER TEXAS."
*295 As an integral part of its youthful, feminine image, Southwest has employed only females in the high customer contact positions of ticket agent and flight attendant. From the start, Southwest's attractive personnel, dressed in high boots and hot-pants, generated public interest and "free ink." Their sex appeal has been used to attract male customers to the airline. Southwest's flight attendants, and to a lesser degree its ticket agents, have been featured in newspaper, magazine, billboard and television advertisements during the past ten years. Some attendants assist in promotional events for other businesses and civic organizations. Southwest flight attendants and ticket agents are featured in the company's in-flight magazine and have received notice in numerous other national and international publications.[5] The airline also encourages its attendants to entertain the passengers and maintain an atmosphere of informality and "fun" during flights. According to Southwest, its female flight attendants have come to "personify" Southwest's public image.
Southwest has enjoyed enormous success in recent years.[6] This is in no small part due to its marketing image. Though Southwest now enjoys a distinct advantage by operating its commuter flights out of "convenient" Love and Hobby Fields, the airline achieved a commanding position in the regional commuter market while flying "wing tip to wing tip" with national carriers who utilized the same airport, fares, schedules, and aircraft. The evidence was undisputed that Southwest's unique, feminized image played and continues to play an important role in the airline's success.[7]
Less certain, however, is Southwest's assertion that its females-only hiring policy is necessary for the continued success of its image and its business. Based on two on-board surveys, one conducted in October, 1979, before this suit was filed, and another in August, 1980, when the suit was pending,[8] Southwest contends its attractive flight attendants are the "largest single component" of its success. In the 1979 survey, however, of the attributes considered most important by passengers, the category "courteous and attentive hostesses" ranked fifth in importance behind (1) on time departures, (2) frequently scheduled departures, (3) friendly and helpful reservations and ground personnel, and (4) convenient *296 departure times,[9] Defendant's Exh. 1 at 2 ( 17) and 39 (Question 14). Apparently, one of the remaining eight alternative categories, "attractive hostesses," was not selected with sufficient frequency to warrant being included in the reported survey results.
In another section of the 1979 survey labeled "likes/dislikes," where passengers were given an opportunity to select one or more attributes they liked about Southwest, the alternative "pleasant/friendly/courteous personnel/hostesses" was selected in "6.49% of the responses,"[10] while "attractive hostesses" got a 5.60% response. The categories "economical" (10.01%), "location" (Love and Hobby) (6.87%), and "convenience" (6.43%) were selected as, or more, often than the personnel/hostess attributes. Summing the two "hostess" percentages, the surveyors concluded that "their combined ratings make them the largest single component of your corporate image. For many of your passengers, the hostesses are Southwest Airlines." (original emphasis) Defendant's Exh. 1, at 15. The Court, however, need not be versed in the techniques of opinion polling to question the soundness of this conclusion on the basis of summing the responses to the two hostess questions. Whatever the percentage figures represent, it is plain that in combining the figures, the survey corporation made no attempt to account for either passengers who selected both personnel/hostess responses, or for passengers who did not give any response at all. More objectionable is concluding that hostesses are the "largest single component" of the airline's image when no other attributes relating to image were presented. Even ignoring these and other deficiencies, the questions on their face say nothing about passenger preference, if any, for female flight attendants instead of males. At most, then, the responses indicate that pleasant, attractive personnel are attributes some passengers liked about Southwest.
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