Seitz, Chief Judge, Gibbons, Hunter, Weis, Garth and Becker, Circuit Judges,*fn* and Dumbauld, District Judge.*fn**
SUR PETITION FOR REHEARING
The petition for rehearing filed by the appellee in the above entitled case having been submitted to the judges who participated in the decision of this court and to all the other available circuit judges of the circuit in regular active service, and no judge who concurred in the decision having asked for rehearing, and a majority of the circuit judges of the circuit in regular active service not having voted for rehearing by the court in banc, the petition for rehearing is denied.
STATEMENT SUR DENIAL OF REHEARING IN BANC
The University of Pennsylvania behaves with the best of intentions when it ministers to the special needs of rape victims and attempts to improve the security of its women students by insuring that women security guards are on duty at all times. I fear, however, that the worthiness of these goals may have enabled the University to fend off a determination of what appears to be a violation of Title VII. Specifically, I believe the panel opinion has too quickly accepted the proposition that, if womanhood is a bona fide occupational qualification for the job thrust upon Officer Moteles, that fact stands as a defense to her claim under Title VII that she was being denied the same job security rights based on seniority as her male counterparts. At least as I understand Title VII, although the bona fide occupational qualification (BFOQ) defense permits the employer to reserve a job for a woman, Title VII as a whole will not countenance the employer's decision to reserve a woman for a job, because in so doing, the employer discriminates beyond the instance where femaleness is necessary, and thus forfeits the protection of section 703(e).
As the foregoing suggests, contrary to the panel holding, I believe that the district court may well have been correct in holding that it was irrelevant whether being a woman was a BFOQ for the job assigned to Officer Moteles. A strong case can be made that, even if an employer would have a BFOQ defense in a suit brought by a man wishing to take a job that only women could perform, that fact would not allow the employer to grant job full security to men occupying gender-neutral jobs but to deny such job security to women. Instead, Title VII may well obligate the employer predicating job security on seniority and faced with a vacancy in a "woman-only" job to hire a new women for such a job, even if this duty requires the employer to expand its workforce or, at worst, to dismiss "innocent" male employees elsewhere in its operation.*fn1
A hypothetical posed by the attorneys for Officer Moteles in their petition for rehearing in banc helps expose the fundamental issues in this area -- issues that I do not believe the panel opinion has adequately addressed. They write:
Imagine, for example, that a juvenile detention facility has two job openings: one for a recreation counselor, who deals with boys and girls; and the other, for the female BFOQ position of girl's dormitory counselor. Imagine further that one man and one woman apply for the recreation counselor job and that the female applicant is qualified while the male applicant is not.
Of course, Title VII would not authorize that employer to reject the female applicant in favor of the male on the basis of her sex alone. Nor, by the same token, would the statute permit a defense that the man was hired in the hopes that the woman would consider taking the BFOQ job, when she had not applied for it. [ Sangster v. United Air Lines, Inc., 438 F. Supp. 1221, 1229 (N.D. Cal. 1977)]. Yet the panel opinion would permit such a defense, justifying the discrimination against the female applicant in the instance where she sought to be a recreation counselor, on the ground that some woman was needed to serve as a girl's dormitory counselor.
I am not certain whether the panel's opinion necessarily dictates the result suggested by Officer Moteles. First, the hypothesized woman's claim to the regular recreation counselor's job was based on "merit." Here, however, Officer Moteles' claim to the general security guard job (and against transfer to the less desirable "woman-only" security guard post) is based not on abstract "merit," but on seniority. Although the defendants here have recognized seniority as a substitute for merit in allocating employment status and privileges, six-based employment decisions which are at variance with seniority rights may not be as inherently suspect under Title VII as those which are at variance with employment opportunities based on merit. Second, the hypothesized woman was denied employment altogether. Officer Moteles has been subjected to a somewhat lesser deprivation.*fn2 Nonetheless, I am hardly certain that these distinctions have much legal force and worry seriously that the panel opinion may wrongly dictate the result put forth by the petitioner for rehearing.
At the very least, I think the real issue in this case -- which is whether, under the special circumstances present here, there is a "business necessity," cf. Palmer v. General Mills, Inc., 513 F.2d 1040, 1044 (6th Cir. 1975), in maintaining a system where male security guards are granted greater protection against transfer to undesirable shifts than women of equal experience -- ought to be addressed by the full court.*fn3 I so state because I believe that this case meets the requirements of our Internal Operating Procedures Chapter 8.B. for in banc hearing. I believe that the case is inconsistent with the tenor of our prior pronouncements and those of the Supreme Court on Title VII, particularly on the seniority area. I also perceive this case to be of considerable importance. I make this judgment because I believe that, as the federal courts work their way through the "second generation" Title VII cases, i.e., those dealing not with mass discrimination but with the more technical aspects of the law, the BFOQ exception and the notion of ...