U.S. Supreme Court Dothard v. Rawlinson, 433
U.S. 321 (1977) Dothard v. Rawlinson No. 76-422 Argued April 19, 1977 Decided June 27, 1977 433
U.S. 321 APPEAL FROM THE UNITED STATES
DISTRICT COURT FOR THE MIDDLE DISTRICT OF
ALABAMA Syllabus After her application for employment as a "correctional
counselor" (prison guard) in Alabama was rejected because she
failed to meet the minimum 120-pound weight requirement of an
Alabama statute, which also establishes a height minimum of 5 feet
2 inches, appellee Rawlinson (hereafter appellee) filed a charge
with the Equal Employment Opportunity Commission and ultimately
brought a class action against appellant corrections officials
challenging the statutory height and weight requirements and a
regulation establishing gender criteria for assigning correctional
counselors to "contact" positions (positions requiring close
physical proximity to inmates) as violative of Title VII of the
Civil Rights Act of 1964, inter alia. A three-judge
District Court decided in appellee's favor. On the basis of
national statistics as to the comparative height and weight of men
and women indicating that Alabama's statutory standards would
exclude over 4% of the female population but less than 1% of the
male population, the court found that, with respect to such
standards, appellee had made out a prima facie case of
unlawful sex discrimination, which appellants had failed to rebut.
The court also found the challenged regulation impermissible under
Title VII as being based on stereotyped characterizations of the
sexes, and, rejecting appellants' "bona fide occupational
qualification" defense under § 703(e) of Title VII, ruled that
being male was not such a qualification for the job of correctional
counselor in a "contact" position in an Alabama male maximum
security penitentiary. Held: 1. The District Court did not err in holding that Title VII
prohibited application of the statutory height and weight
requirements to appellee and the class she represents. Pp. 433 U. S.
328 -332.

															(a) To establish a prima facie case of employment
discrimination, a plaintiff need only show that the facially
neutral standards in question, such as Alabama's height and weight
standards, select applicants for hire in a significantly
discriminatory pattern, and here the showing of the
disproportionate impact of the height and weight standards on women
based on national statistics, rather than on comparative
statistics Page 433 U. S. 332 of actual applicants, sufficed to make out a prima
facie case. Pp. 433 U. S.
328 -331.

															(b) Appellants failed to rebut the prima facie case of
discrimination on the basis that the height and weight requirements
are job-related in that they have a relationship to the strength
essential to efficient job performance as a correctional counselor,
where appellants produced no evidence correlating such requirements
with the requisite amount of strength thought essential to good job
performance, and in fact failed to offer evidence of any kind in
specific justification of the statutory standards. P. 433 U. S.
331 .

															2. In the particular circumstances of this case, the District
Court erred in rejecting appellants' contention that the regulation
in question falls within the narrow ambit of the "bona fide
occupational qualification" exception of § 703(e), it appearing
from the evidence that Alabama maintains a prison system where
violence is the order of the day, inmate access to guards is
facilitated by dormitory living arrangements, every correctional
institution is understaffed, and a substantial portion of the
inmate population is composed of sex offenders mixed at random with
other prisoners, and that therefore the use of women guards in
"contact" positions in the maximum security male penitentiaries
would pose a substantial security problem, directly linked to the
sex of the prison guard. Pp. 433 U. S.
332 -337. 418
F. Supp. 1169 , affirmed in part, reversed in part, and
remanded.

															STEWART, J., delivered the opinion of the Court, in which POWELL
and STEVENS, JJ., joined; in all but Part II of which BURGER, C.J.,
and BLACKMUN and REHNQUIST, JJ., joined; and in all but Part III of
which BRENNAN and MARSHALL, JJ., joined. REHNQUIST, J., filed an
opinion concurring in the result and concurring in part, in which
BURGER, C.J., and BLACKMUN, J., joined, post, p. 433 U. S. 337 .
MARSHALL, J., filed an opinion concurring in part and dissenting in
part, in which BRENNAN, J., joined, post, p. 433 U. S. 340 .
WHITE, J., filed a dissenting opinion, post, p. 433 U. S. 347 . Page 433 U. S. 323 MR. JUSTICE STEWART delivered the opinion of the Court.

															Appellee Dianne Rawlinson sought employment with the Alabama
Board of Corrections as a prison guard, called in Alabama a
"correctional counselor." After her application was rejected, she
brought this class suit under Title VII of the Civil Rights Act of
1964, 78 Stat. 253, as amended, 42 U.S.C. § 20OOe et seq. (1970 ed. and Supp. V), and under 42 U.S.C. § 1983, alleging that
she had been denied employment because of her sex in violation of
federal law. A three-judge Federal District Court for the Middle
District of Alabama decided in her favor. Mieth v.
Dothard, 418 F.
Supp. 1169 . We noted probable jurisdiction of this appeal from
the District Court's judgment. 429 U.S. 976. [ Footnote 1 ] I At the time she applied for a position as correctional counselor
trainee, Rawlinson was a 22-year-old college graduate whose major
course of study had been correctional psychology. She was refused
employment because she failed to meet the minimum 120-pound weight
requirement established Page 433 U. S. 324 by an Alabama statute. The statute also establishes a height
minimum of 5 feet 2 inches. [ Footnote 2 ]

															After her application was rejected because of her weight,
Rawlinson filed a charge with the Equal Employment Opportunity
Commission, and ultimately received a right-to-sue letter.
[ Footnote 3 ] She then filed a
complaint in the District Court on behalf of herself and other
similarly situated women, challenging the statutory height and
weight minima as violative of Title VII and the Equal Protection
Clause of the Fourteenth Amendment. [ Footnote 4 ] A three-judge court was convened. [ Footnote 5 ] While the suit was pending,
the Alabama Board of Corrections Page 433 U. S. 325 adopted Administrative Regulation 204, establishing gender
criteria for assigning correctional counselors to maximum security
institutions for "contact positions," that is, positions requiring
continual close physical proximity to inmates of the institution.
[ Footnote 6 ] Rawlinson amended
her class action Page 433 U. S. 326 complaint by adding a challenge to Regulation 204 as also
violative of Title VII and the Fourteenth Amendment.

															Like most correctional facilities in the United States,
[ Footnote 7 ] Alabama's prisons
are segregated on the basis of sex. Currently, the Alabama Board of
Corrections operates four major all-male penitentiaries -- Holman
Prison, Kilby Corrections Facility, G. K. Fountain Correction
Center, and Draper Correctional Center. The Board also operates the
Julia Tutwiler Prison for Women, the Frank Lee Youth Center, the
Number Four Honor Camp, the State Cattle Ranch, and nine Work
Release Centers, one of which is for women. The Julia Tutwiler
Prison for Women and the four male penitentiaries are maximum
security institutions. Their inmate living quarters are, for the
most part, large dormitories, with communal showers and toilets
that are open to the dormitories and hallways. The Draper and
Fountain penitentiaries carry on extensive farming operations,
making necessary a large number of strip searches for contraband
when prisoners reenter the prison buildings.

															A correctional counselor's primary duty within these
institutions is to maintain security and control of the inmates Page 433 U. S. 327 by continually supervising and observing their activities.
[ Footnote 8 ] To be eligible for
consideration as a correctional counselor, an applicant must
possess a valid Alabama driver's license, have a high school
education or its equivalent, be free from physical defects, be
between the ages of 20 1/2 years and 45 years at the time of
appointment, and fall between the minimum height and weight
requirements of 5 feet 2 inches, and 120 pounds, and the maximum of
6 feet 10 inches, and 300 pounds. Appointment is by merit, with a
grade assigned each applicant based on experience and education. No
written examination is given.

															At the time this litigation was in the District Court, the Board
of Corrections employed a total of 435 people in various
correctional counselor positions, 56 of whom were women. Of those
56 women, 21 were employed at the Julia Tutwiler Prison for Women,
13 were employed in non-contact positions at the four male maximum
security institutions, and the remaining 22 were employed at the
other institutions operated by the Alabama Board of Corrections.
Because most of Alabama's prisoners are held at the four maximum
security male penitentiaries, 336 of the 435 correctional counselor
jobs were in those institutions, a majority of them concededly in
the "contact" classification. [ Footnote 9 ] Thus, even though meeting the statutory height
and weight requirements, women applicants could, under Regulation
204, compete Page 433 U. S. 328 equally with men for only about 25% of the correctional
counselor jobs available in the Alabama prison system. II In enacting Title VII, Congress required

															"the removal of artificial, arbitrary, and unnecessary barriers
to employment when the barriers operate invidiously to discriminate
on the basis of racial or other impermissible classification." Griggs v. Duke Power Co., 401 U.
S. 424 , 401 U. S. 431 .
The District Court found that the minimum statutory height and
weight requirements that applicants for employment as correctional
counselors must meet constitute the sort of arbitrary barrier to
equal employment opportunity that Title VII forbids. [ Footnote 10 ] The appellants assert
that the District Court erred both in finding that the height and
weight standards discriminate against women and in its refusal to
find that, even if they do, these standards are justified as
"job-related." A The gist of the claim that the statutory height and weight
requirements discriminate against women does not involve an
assertion of purposeful discriminatory motive. [ Footnote 11 ] It is asserted, Page 433 U. S. 329 rather, that these facially neutral qualification standards work
in fact disproportionately to exclude women from eligibility for
employment by the Alabama Board of Corrections. We dealt in Griggs v. Duke Power Co., supra, and Albemarle Paper
Co. v. Moody, 422 U. S. 405 ,
with similar allegations that facially neutral employment standards
disproportionately excluded Negroes from employment, and those
cases guide our approach here.

															Those cases make clear that, to establish a prima facie case of discrimination, a plaintiff need only show that the
facially neutral standards in question select applicants for hire
in a significantly discriminatory pattern. Once it is thus shown
that the employment standards are discriminatory in effect, the
employer must meet "the burden of showing that any given
requirement [has] . . . a manifest relationship to the employment
in question." Griggs v. Duke Power Co., supra at 401 U. S. 432 .
If the employer proves that the challenged requirements are
job-related, the plaintiff may then show that other selection
devices without a similar discriminatory effect would also "serve
the employer's legitimate interest in efficient and trustworthy
workmanship.'" Albemarle Paper Co. v. Moody, supra at 422 U. S. 425 ,
quoting McDonnell Douglas Corp. v. Green, 411 U.
S. 792 , 411 U. S.
801 . Although women 14 years of age or older compose 52.75% of the
Alabama population and 36.89% of its total labor force, they hold
only 12.9% of its correctional counselor positions. In considering
the effect of the minimum height and weight standards on this
disparity in rate of hiring between the sexes, the District Court
found that the 5'2" requirement would operate to exclude 33.29% of
the women in the United States between the ages of 18-79, while
excluding only 1.28% of men between the same ages. The 120-pound
weight restriction would exclude 22.29% of the women and 2.35% of
the men in this age group. When the height and weight restrictions
are combined, Alabama's statutory standards would exclude 41.13% of
the female population, Page 433 U. S. 330 while excluding less than 1% of the male population. [ Footnote 12 ] Accordingly, the
District Court found that Rawlinson had made out a prima
facie case of unlawful sex discrimination.

															The appellants argue that a showing of disproportionate impact
on women based on generalized national statistics should not
suffice to establish a prima facie case. They point in
particular to Rawlinson's failure to adduce comparative statistics
concerning actual applicants for correctional counselor positions
in Alabama. There is no requirement, however, that a statistical
showing of disproportionate impact must always be based on analysis
of the characteristics of actual applicants. See Griggs v. Duke
Power Co., supra at 401 U. S. 430 .
The application process itself might not adequately reflect the
actual potential applicant pool, since, otherwise, qualified people
might be discouraged from applying because of a self-recognized
inability to meet the very standards challenged as being
discriminatory. See Teamsters v. United States, 431 U. S. 324 , 431 U. S.
365 -367. A potential applicant could easily determine
her height and weight and conclude that to make an application
would be futile. Moreover, reliance on general population
demographic data was not misplaced where there was no reason to
suppose that physical height and weight characteristics of Alabama
men and women differ markedly from those of the national
population. Page 433 U. S. 331 For these reasons, we cannot say that the District Court was
wrong in holding that the statutory height and weight standards had
a discriminatory impact on women applicants. The plaintiffs in a
case such as this are not required to exhaust every possible source
of evidence, if the evidence actually presented on its face
conspicuously demonstrates a job requirement's grossly
discriminatory impact. If the employer discerns fallacies or
deficiencies in the data offered by the plaintiff, he is free to
adduce countervailing evidence of his own. In this case no such
effort was made. [ Footnote
13 ] B We turn, therefore, to the appellants' argument that they have
rebutted the prima facie case of discrimination by showing
that the height and weight requirements are job-related. These
requirements, they say, have a relationship to strength, a
sufficient but unspecified amount of which is essential to
effective job performance as a correctional counselor. In the
District Court, however, the appellants produced no evidence
correlating the height and weight requirements with the requisite
amount of strength thought essential to good job performance.
Indeed, they failed to offer evidence of any kind in specific
justification of the statutory standards. [ Footnote 14 ] Page 433 U. S. 332 If the job-related quality that the appellants identify is bona fide, their purpose could be achieved by adopting and
validating a test for applicants that measures strength directly.
[ Footnote 15 ] Such a test,
fairly administered, would fully satisfy the standards of Title
VII, because it would be one that "measure[s] the person for the
job, and not the person in the abstract." Griggs v. Duke Power
Co., 401 U.S. at 401 U. S. 436 .
But nothing in the present record even approaches such a
measurement.

															For the reasons we have discussed, the District Court was not in
error in holding that Title VII of the Civil Rights Act of 1964, as
amended, prohibits application of the statutory height and weight
requirements to Rawlinson and the class she represents. III Unlike the statutory height and weight requirements, Regulation
204 explicitly discriminates against women on the basis of their
sex. [ Footnote 16 ] In
defense of this overt discrimination, Page 433 U. S. 333 the appellants rely on § 703(e) of Title VII, 42 U.S.C. §
2000e-2(e), which permits sex-based discrimination

															"in those certain instances where . . . sex . . . is a bona
fide occupational qualification reasonably necessary to the
normal operation of that particular business or enterprise."

															The District Court rejected the " bona fide occupational
qualification" (bfoq) defense, relying on the virtually uniform
view of the federal courts that § 703(e) provides only the
narrowest of exceptions to the general rule requiring equality of
employment opportunities. This view has been variously formulated.
In Diaz v. Pan American World Airways, 442 F.2d 385, 388,
the Court of Appeals for the Fifth Circuit held that

															"discrimination based on sex is valid only when the essence of the business operation would be undermined by
not hiring members of one sex exclusively."

															(Emphasis in original.) In an earlier case, Weeks v.
Southern Bell Tel. & Tel. Co., 408 F.2d 228, 235, the same
court said that an employer could rely on the bfoq exception only
by proving

															"that he had reasonable cause to believe, that is, a factual
basis for believing, that all or substantially all women would be
unable to perform safely and efficiently the duties of the job
involved." See also Phillips v. Martin Marietta Corp., 400 U. S. 542 . But
whatever the verbal formulation, the federal courts have agreed
that it is impermissible under Title VII to refuse to hire an
individual woman or man on the basis of stereotyped
characterizations of the sexes, [ Footnote 17 ] and the District Page 433 U. S. 334 Court in the present case held, in effect, that Regulation 204
is based on just such stereotypical assumptions.

															We are persuaded -- by the restrictive language of § 703(e), the
relevant legislative history, [ Footnote 18 ] and the consistent interpretation of the
Equal Employment Opportunity Commission [ Footnote 19 ] -- that the bfoq exception was, in fact,
meant to be an extremely narrow exception to the general
prohibition of discrimination on the basis of sex. [ Footnote 20 ] In the particular factual
circumstances of this case, however, we conclude that the District
Court erred in rejecting the State's contention that Regulation 204
falls within the narrow ambit of the bfoq exception.

															The environment in Alabama's penitentiaries is a peculiarly
inhospitable one for human beings of whatever sex. Indeed, a
Federal District Court has held that the conditions of confinement
in the prisons of the State, characterized by "rampant violence"
and a "jungle atmosphere," are constitutionally intolerable. Pugh v. Locke, 406 F.
Supp. 318 , 325 (MD Ala.). The record in the present case shows
that, Page 433 U. S. 335 because of inadequate staff and facilities, no attempt is made
in the four maximum security male penitentiaries to classify or
segregate inmates according to their offense or level of
dangerousness -- a procedure that, according to expert testimony,
is essential to effective penological administration. Consequently,
the estimated 20% of the male prisoners who are sex offenders are
scattered throughout the penitentiaries' dormitory facilities.

															In this environment of violence and disorganization, it would be
an oversimplification to characterize Regulation 204 as an exercise
in "romantic paternalism." Cf. Frontiero v. Richardson, 411 U. S. 677 , 411 U. S. 684 .
In the usual case, the argument that a particular job is too
dangerous for women may appropriately be met by the rejoinder that
it is the purpose of Title VII to allow the individual woman to
make that choice for herself. [ Footnote 21 ] More is at stake in this case, however, than
an individual woman's decision to weigh and accept the risks of
employment in a "contact" position in a maximum security male
prison.

															The essence of a correctional counselor's job is to maintain
prison security. A woman's relative ability to maintain order in a
male, maximum security, unclassified penitentiary of the type
Alabama now runs could be directly reduced by her womanhood. There
is a basis in fact for expecting that sex offenders who have
criminally assaulted women in the past would be moved to do so
again if access to women were established within the prison. There
would also be a real risk that other inmates, deprived of a normal
heterosexual environment, would assault women guards because they
were women. [ Footnote 22 ] In
a prison system where violence is the order Page 433 U. S. 336 of the day, where inmate access to guards is facilitated by
dormitory living arrangements, where every institution is
understaffed, and where a substantial portion of the inmate
population is composed of sex offenders mixed at random with other
prisoners, there are few visible deterrents to inmate assaults on
women custodians.

															Appellee Rawlinson's own expert testified that dormitory housing
for aggressive inmates poses a greater security problem than
single-cell lockups, and further testified that it would be unwise
to use women as guards in a prison where even 10% of the inmates
had been convicted of sex crimes and were not segregated from the
other prisoners. [ Footnote
23 ] The likelihood that inmates would assault a woman because
she was a woman would pose a real threat not only to the victim of
the assault, but also to the basic control of the penitentiary and
protection of its inmates and the other security personnel. The
employee's very womanhood would thus directly undermine her
capacity to provide the security that is the essence of a
correctional counselor's responsibility.

															There was substantial testimony from experts on both sides of
this litigation that the use of women as guards in "contact"
positions under the existing conditions in Alabama maximum security
male penitentiaries would pose a substantial security problem,
directly linked to the sex of the prison guard. On the basis of
that evidence, we conclude that the District Court was in error in
ruling that being male is not a bona fide occupational
qualification for the job of Page 433 U. S. 337 correctional counselor in a "contact" position in an Alabama
male maximum security penitentiary. [ Footnote 24 ]

															The judgment is accordingly affirmed in part and reversed in
part, and the case is remanded to the District Court for further
proceedings consistent with this opinion. It is so ordered. MR. JUSTICE REHNQUIST, with whom THE CHIEF JUSTICE and MR.
JUSTICE BLACKMUN join, concurring in the result and concurring in
part.

															I agree with, and join, Parts I and III of the Court's opinion
in this case, and with its judgment. While I also agree with the
Court's conclusion in Part II of its opinion, holding that the
District Court was "not in error" in holding the statutory height
and weight requirements in this case to be invalidated by Title
VII, ante at 433 U. S. 332 ,
the issues with which that Part deals are bound to arise so
frequently that I feel obliged to separately state the reasons for
my agreement with its result. I view affirmance of the District
Court in this respect as essentially dictated by the peculiarly
limited factual and legal justifications offered below by
appellants on behalf of the statutory requirements. For that
reason, I do not believe -- and do not read the Court's opinion as
holding -- that all or even many of the height and weight
requirements imposed by States on applicants for a multitude of law
enforcement agency jobs are pretermitted by today's decision.

															I agree that the statistics relied upon in this case are
sufficient, absent rebuttal, to sustain a finding of a prima Page 433 U. S. 338 facie violation of § 703(a)(2), in that they reveal a
significant discrepancy between the numbers of men, as opposed to
women, who are automatically disqualified by reason of the height
and weight requirements. The fact that these statistics are
national figures of height and weight, as opposed to state-wide or
"pool of labor-force" statistics, does not seem to me to require us
to hold that the District Court erred as a matter of law in
admitting them into evidence. See Hamling v. United
States, 418 U. S. 87 , 418 U. S. 108 , 418 U. S.
124 -125 (1974); cf. Zenith Corp. v. Hazeltine, 395 U. S. 100 , 395 U. S.
123 -125 (1969). It is for the District Court, in the
first instance, to determine whether these statistics appear
sufficiently probative of the ultimate fact in issue -- whether a
given job qualification requirement has a disparate impact on some
group protected by Title VII. Hazelwood School Dist. v. United
States, ante at 433 U. S.
312 -313; see Hamling v. United States, supra, at 418 U. S. 108 , 418 U. S.
124 -125; Mayor v. Educational Equality League, 415 U. S. 605 , 415 U. S. 621 n. 20 (1974); see also McAllister v. United States, 348 U. S. 19 (1954); United States v. Yellow Cab Co., 338 U.
S. 338 , 338 U. S.
340 -342 (1949). In making this determination, such
statistics are to be considered in light of all other relevant
facts and circumstances. Cf. Teamsters v. United States, 431 U. S. 324 , 431 U. S. 340 (1977). The statistics relied on here do not suffer from the
obvious lack of relevancy of the statistics relied on by the
District Court in Hazelwood School Dist. v. United States,
ante at 433 U. S. 308 .
A reviewing court cannot say as a matter of law that they are
irrelevant to the contested issue or so lacking in reliability as
to be inadmissible.

															If the defendants in a Title VII suit believe there to be any
reason to discredit plaintiffs' statistics that does not appear on
their face, the opportunity to challenge them is available to the
defendants, just as in any other lawsuit. They may endeavor to
impeach the reliability of the statistical evidence, they may offer
rebutting evidence, or they may disparage in arguments or in briefs
the probative weight which Page 433 U. S. 339 the plaintiffs' evidence should be accorded. Since I agree with
the Court that appellants made virtually no such effort, ante at 433 U. S. 331 ,
I also agree with it that the District Court cannot be said to have
erred as a matter of law in finding that a prima facie case had been made out in the instant case.

															While the District Court's conclusion is by no means required by
the proffered evidence, I am unable to conclude that the District
Court's finding in that respect was clearly erroneous. In other
cases, there could be different evidence which could lead a
district court to conclude that height and weight are, in fact, an
accurate enough predictor of strength to justify, under all the
circumstances, such minima. Should the height and weight
requirements be found to advance the job-related qualification of
strength sufficiently to rebut the prima facie case, then,
under our cases, the burden would shift back to appellee Rawlinson
to demonstrate that other tests, without such disparate effect,
would also meet that concern. Albemarle Paper Co. v.
Moody, 422 U. S. 405 , 422 U. S. 425 (1975). But, here, the District Court permissibly concluded that
appellants had not shown enough of a nexus even to rebut the
inference.

															Appellants, in order to rebut the prima facie case
under the statute, had the burden placed on them to advance
job-related reasons for the qualification. McDonnell Douglas
Corp. v. Green, 411 U. S. 792 , 411 U. S. 802 (1973). This burden could be shouldered by offering evidence or by
making legal arguments not dependent on any new evidence. The
District Court was confronted, however, with only one suggested
job-related reason for the qualification -- that of strength.
Appellants argued only the job-relatedness of actual physical
strength; they did not urge that an equally job-related
qualification for prison guards is the appearance of strength. As
the Court notes, the primary job of correctional counselor in
Alabama prisons "is to maintain security and control of the inmates
. . . ," ante at 433 U. S. 326 ,
a function that I at least would Page 433 U. S. 340 imagine is aided by the psychological impact on prisoners of the
presence of tall and heavy guards. If the appearance of strength
had been urged upon the District Court here as a reason for the
height and weight minima, I think that the District Court would
surely have been entitled to reach a different result than it did.
For, even if not perfectly correlated, I would think that Title VII
would not preclude a State from saying that anyone under 5'2" or
120 pounds, no matter how strong in fact, does not have a
sufficient appearance of strength to be a prison guard.

															But once the burden has been placed on the defendant, it is then
up to the defendant to articulate the asserted job-related reasons
underlying the use of the minima. McDonnell Douglas Corp. v.
Green, supra at 411 U. S. 802 ; Griggs v. Duke Power Co., 401 U.
S. 424 , 401 U. S. 431 (1971); Albemarle Paper Co. v. Moody, supra, at 422 U. S. 425 .
Because of this burden, a reviewing court is not ordinarily
justified in relying on arguments in favor of a job qualification
that were not first presented to the trial court. Cf. United
States v. Arnold, Schwinn & Co., 388 U.
S. 365 , 388 U. S. 374 n. 5 (1967); Thomas v. Taylor, 224 U. S.
73 , 224 U. S. 84 (1912); Bell v. Bruen , 1 How. 169, 42 U. S. 187 (1843). As appellants did not even present the "appearance of
strength" contention to the District Court as an asserted
job-related reason for the qualification requirements, I agree that
their burden was not met. The District Court's holding thus did not
deal with the question of whether such an assertion could or did
rebut appellee Rawlinson's prima facie case.

															[ Footnote 1 ]

															The appellants sought to raise for the first time in their brief
on the merits the claim that Congress acted unconstitutionally in
extending Title VII's coverage to state governments. See the Equal Employment Opportunity Act of 1972, 86 Stat. 103,
effective date, Mar. 24, 1972, 42 U.S.C. §§ 2000e(a), (b), (f), (h)
(1970 ed., Supp. V). Not having been raised in the District Court,
that issue is not before us. See Adickes v. Kress &
Co., 398 U. S. 144 , 398 U. S. 147 n. 2; Irvine v. California, 347 U.
S. 128 , 347 U. S.
129 .

															[ Footnote 2 ]

															The statute establishes minimum physical standards for all law
enforcement officers. In pertinent part, it provides:

															"(d) Physical qualifications . -- The applicant shall be
not less than five feet two inches nor more than six feet ten
inches in height, shall weigh not less than 120 pounds nor more
than 300 pounds, and shall be certified by a licensed physician
designated as satisfactory by the appointing authority as in good
health and physically fit for the performance of his duties as a
law enforcement officer. The commission may for good cause shown
permit variances from the physical qualifications prescribed in
this subdivision."

															Ala.Code, Tit. 55, § 373 (109) (Supp. 1973).

															[ Footnote 3 ] See 42 U.S.C. § 2000e-5(f) (1970 ed., Supp. V).

															[ Footnote 4 ]

															A second plaintiff named in the complaint was Brenda Mieth, who,
on behalf of herself and others similarly situated, challenged the
5'9" height and 160-pound weight requirements for the position of
Alabama state trooper as violative of the Equal Protection Clause.
The District Court upheld her challenge, and the defendants did not
appeal from that aspect of the District Court's judgment.

															[ Footnote 5 ]

															Although a single-judge District Court could have considered
Rawlinson's Title VII claims, her co-plaintiff's suit rested
entirely on the Constitution. See n 4, supra. Given the similarity of the
underlying issues in the two cases, it was not inappropriate to
convene a three-judge court to deal with the constitutional and
statutory issues presented in the complaint. When a properly
convened three-judge court enjoins the operation of a state law on
federal statutory grounds, an appeal to this Court from that
judgment lies under 28 U.S.C. § 1253. See Engineers v. Chicago,
R. 1. & P. R. Co., 382 U. S. 423 ; Philbrook v. Glodgett, 421 U. S. 707 .

															[ Footnote 6 ]

															Administrative Regulation 204 provides, in pertinent part, as
follows:

															"I. GENERAL"

															"1. The purpose of this regulation is to establish policy and
procedure for identifying and designating institutional
Correctional Counselor I positions which require selective
certification for appointment of either male or female employees
from State Personnel Department registers."

															" * * * *" "II. POLICY"

															"4. All Correctional Counselor I positions will be evaluated to
identify and designate those which require selective certification
for appointment of either a male or female employee. Such positions
must fall within a bona fide occupational qualification stated in
Title 4[2]-2000c of the United States Code. . . . "

															" * * * *" "5. Selective certification from the Correctional Counselor
Trainee register will be requested of the State Personnel
Department whenever a position is being filled which has been
designated for either a male or female employee only."

															" * * * *" "III. PROCEDURE"

															"8. Institutional Wardens and Directors will identify each
institutional Correctional Counselor I position which they feel
requires selective certification and will request that it be so
designated in writing to the Associate Commissioner for
Administration for his review, evaluation, and submission to the
Commissioner for final decision."

															"9. The request will contain the exact duties and
responsibilities of the position and will utilize and identify the
following criteria to establish that selective certification is
necessary;"

															"A. That the presence of the opposite sex would cause disruption
of the orderly running and security of the institution."

															"B. That the position would require contact with the inmates of
the opposite sex without the presence of others."

															"C. That the position would require patroling dormitories,
restrooms, or showers while in use, frequently, during the day or
night."

															"D. That the position would require search of inmates of the
opposite sex on a regular basis."

															"E. That the position would require that the Correctional
Counselor Trainee not be armed with a firearm."

															"10. All institutional Correctional Counselor I positions which
are not approved for selective certification will be filled from
Correctional Counselor Trainee registers without regard to
sex."

															Although Regulation 204 is not limited, on its face, to contact
positions in maximum security institutions, the District Court
found that it did not "preclude . . . [women] from serving in
contact positions in the all-male institutions other than the
penitentiaries." 418 F. Supp. at 1176. Appellants similarly
defended the regulation as applying only to maximum security
facilities.

															[ Footnote 7 ]

															Note, The Sexual Segregation of American Prisons, 82 Yale L.J.
1229 (1973).

															[ Footnote 8 ]

															The official job description for a correctional counselor
position emphasizes counseling as well as security duties; the
District Court found:

															"[C]orrectional counselors are persons who are commonly referred
to as prison guards. Their duties primarily involve security,
rather than counseling." 418
F. Supp. 1169 , 1175.

															[ Footnote 9 ]

															At the time of the trial, the Board of Corrections had not yet
classified all of its correctional counselor positions in the
maximum security institutions according to the criteria established
in Regulation 204; consequently, evidence of the exact number of
"male only" jobs within the prison system was not available.

															[ Footnote 10 ]

															Section 703(a) of Title VII, 42 U.S.C. § 2000e-2(a) (1970 ed.
and Supp. V), provides:

															"(a) Employer practices. It shall be an unlawful employment
practice for an employer -- "

															"(1) to fail or refuse to hire or to discharge any individual,
or otherwise to discriminate against any individual with respect to
his compensation, terms, conditions, or privileges of employment,
because of such individual's race, color, religion, sex, or
national origin; or"

															"(2) to limit, segregate, or classify his employees or
applicants for employment in any way which would deprive or tend to
deprive any individual of employment opportunities or otherwise
adversely affect his status as an employee, because of such
individual's race, color, religion, sex, or national origin."

															[ Footnote 11 ] See Teamsters v. United States, 431 U.
S. 324 , 431 U. S.
335 -336, n. 15.

															[ Footnote 12 ]

															Affirmatively stated, approximately 99.76% of the men and 58.87%
of the women meet both these physical qualifications. From the
separate statistics on height and weight of males, it would appear
that, after adding the two together and allowing for some overlap,
the result would be to exclude between 2.35% and 3.63% of males
from meeting Alabama's statutory height and weight minima. None of
the parties has challenged the accuracy of the District Court's
computations on this score, however, and the discrepancy is, in any
event, insignificant in light of the gross disparity between the
female and male exclusions. Even under revised computations the
disparity would greatly exceed the 34% to 12% disparity that served
to invalidate the high school diploma requirement in the Griggs case. 401 U.S. at 401 U. S.
430 .

															[ Footnote 13 ]

															The height and weight statute contains a waiver provision that
the appellants urge saves it from attack under Title VII. See n 2, supra. The District Court noted that a valid waiver
provision might indeed have that effect, but found that applicants
were not informed of the waiver provision, and that the Board of
Corrections had never requested a waiver from the Alabama Peace
Officers' Standards and Training Commission. The court therefore
correctly concluded that the waiver provision, as administered,
failed to overcome the discriminatory effect of the statute's basic
provisions.

															[ Footnote 14 ]

															In what is perhaps a variation on their constitutional challenge
to the validity of Title VII itself, see n 1, supra, the appellants contend
that the establishment of the minimum height and weight standards
by statute requires that they be given greater deference than is
typically given private employer-established job qualifications.
The relevant legislative history of the 1972 amendments extending
Title VII to the States as employers does not, however, support
such a result. Instead, Congress expressly indicated the intent
that the same Title VII principles be applied to governmental and
private employers alike. See H.R.Rep. No. 92-238, p. 17
(1971); S.Rep. No. 92-415, p. 10 (1971). See also Schaeffer v.
San Diego Yellow Cabs, 462 F.2d 1002 (CA9). Thus, for both
private and public employers, "[t]he touchstone is business
necessity," Griggs, 401 U.S. at 401 U. S. 431 ;
a discriminatory employment practice must be shown to be necessary
to safe and efficient job performance to survive a Title VII
challenge.

															[ Footnote 15 ] Cf. EEOC Guidelines on Employee Selection Procedures,
29 CFR § 1607 (1976). See also Washington v. Davis, 426 U. S. 229 , 426 U. S.
246 -247; Albemarle Paper Co. v. Moody, 422 U. S. 405 ; Officers for Justice v. Civil Service
Comm'n, 395 F.
Supp. 378 (ND Cal.).

															[ Footnote 16 ]

															By its terms, Regulation 204 applies to contact positions in
both male and female institutions. See n 6, supra. The District Court found,
however, that

															"Regulation 204 is the administrative means by which the [Board
of Corrections'] policy of not hiring women as correctional
counselors in contact positions in all-male penitentiaries has been
implemented."

															418 F. Supp. at 1176. The Regulation excludes women from
consideration for approximately 75% of the available correctional
counselor jobs in the Alabama prison system.

															[ Footnote 17 ] See, e.g., Gillin v. Federal Paper Board Co., 479 F.2d
97 (CA2); Jurinko v. Edwin L. Wiegand Co., 477 F.2d 1038
(CA3); Rosenfeld v. Southern Pacific Co., 444 F.2d 1219
(CA9); Bowe v. Colgate-Palmolive Co., 416 F.2d 711 (CA7); Meadows v. Ford Motor Co., 62 F.R.D. 98 (WD Ky.), modified on other grounds, 510 F.2d 939 (CA6). See
also Jones Metal Products Co. v. Walker, 29 Ohio St.2d 173,
281 N.E.2d 1; EEOC Guidelines on Discrimination Because of Sex, 29
CFR § 1604 (1976).

															[ Footnote 18 ] See Interpretative Memorandum of Senators Clark and
Case, 110 Cong.Rec. 7213 (1964).

															[ Footnote 19 ]

															The EEOC issued guidelines on sex discrimination in 1965
reflecting its position that "the bona fide occupational
qualification as to sex should be interpreted narrowly." 29 CFR §
1604.2(a). It has adhered to that principle consistently, and its
construction of the statute can accordingly be given weight. See Griggs v. Duke Power Co., 401 U.S. at 401 U. S. 434 ; McDonald v. Santa Fe Trail Transp. Co., 427 U.
S. 273 , 427 U. S.
279 -280.

															[ Footnote 20 ]

															In the case of a state employer, the bfoq exception would have
to be interpreted, at the very least, so as to conform to the Equal
Protection Clause of the Fourteenth Amendment. The parties do not
suggest, however, that the Equal Protection Clause requires more
rigorous scrutiny of a State's sexually discriminatory employment
policy than does Title VII. There is thus no occasion to give
independent consideration to the District Court's ruling that
Regulation 204 violates the Fourteenth Amendment, as well as Title
VII.

															[ Footnote 21 ] See, e.g., Weeks v. Southern Bell Tel. & Tel. Co., 408 F.2d 228, 232-236 (CA5); Bowe v. Colgate-Palmolive Co.,
supra at 717-718; Rosenfeld v. Southern Pacific Co.,
supra. [ Footnote 22 ]

															The record contains evidence of an attack on a female clerical
worker in an Alabama prison, and of an incident involving a woman
student who was taken hostage during a visit to one of the maximum
security institutions.

															[ Footnote 23 ]

															Alabama's penitentiaries are evidently not typical. Appellee
Rawlinson's two experts testified that, in a normal, relatively
stable maximum security prison -- characterized by control over the
inmates, reasonable living conditions, and segregation of dangerous
offenders -- women guards could be used effectively and
beneficially. Similarly, an amicus brief filed by the
State of California attests to that State's success in using women
guards in all-male penitentiaries.

															[ Footnote 24 ]

															The record shows, by contrast, that Alabama's minimum security
facilities, such as work-release centers, are recognized by their
inmates as privileged confinement situations not to be lightly
jeopardized by disobeying applicable rules of conduct. Inmates
assigned to these institutions are thought to be the "cream of the
crop" of the Alabama prison population.

															MR. JUSTICE MARSHALL, with whom MR. JUSTICE BRENNAN joins,
concurring in part and dissenting in part.

															I agree entirely with the Court's analysis of Alabama's height
and weight requirements for prison guards, and with its finding
that these restrictions discriminate on the basis of sex in
violation of Title VII. Accordingly, I join Parts I and II of the
Court's opinion. I also agree with much of the Court's general
discussion in Part III of the "bona fide occupational Page 433 U. S. 341 qualification" exception contained in § 703(e) of Title VII.
[ Footnote 2/1 ] The Court is
unquestionably correct when it holds

															"that the bfoq exception was, in fact, meant to be an extremely
narrow exception to the general prohibition of discrimination on
the basis of sex." Ante at 433 U. S. 334 . See Phillips v. Martin Marietta Corp., 400 U.
S. 542 , 400 U. S. 544 (1971) (MARSHALL, J., concurring). I must, however, respectfully
disagree with the Court's application of the bfoq exception in this
case.

															The Court properly rejects two proffered justifications for
denying women jobs as prison guards. It is simply irrelevant here
that a guard's occupation is dangerous, and that some women might
be unable to protect themselves adequately. Those themes permeate
the testimony of the state officials below, but, as the Court
holds, "the argument that a particular job is too dangerous for
women" is refuted by the "purpose of Title VII to allow the
individual woman to make that choice for herself." Ante at 433 U. S. 335 .
Some women, like some men, undoubtedly are not qualified, and do
not wish, to serve as prison guards, but that does not justify the
exclusion of all women from this employment opportunity. Thus,
"[i]n the usual case," ibid., the Court's interpretation
of the bfoq exception would mandate hiring qualified women for
guard jobs in maximum security institutions. The highly successful
experiences of other States allowing such job opportunities, see briefs for the States of California and Washington as amici curiae, confirm that absolute disqualification of
women is not, in the words of Title VII, "reasonably necessary to
the normal operation" of a maximum security prison.

															What would otherwise be considered unlawful discrimination
against women is justified by the Court, however, on the Page 433 U. S. 342 basis of the "barbaric and inhumane" conditions in Alabama
prisons, conditions so bad that state officials have conceded that
they violate the Constitution. See Pugh v.
Locke, 406 F.
Supp. 318 , 329, 331 (MD Ala.1976). To me, this analysis sounds
distressingly like saying two wrongs make a right. It is refuted by
the plain words of § 703(e). The statute requires that a bfoq be
"reasonably necessary to the normal operation of that particular
business or enterprise." But no governmental "business" may operate
"normally" in violation of the Constitution. Every action of
government is constrained by constitutional limitations. While
those limits may be violated more frequently than we would wish, no
one disputes that the "normal operation" of all government
functions takes place within them. A prison system operating in
blatant violation of the Eighth Amendment is an exception that
should be remedied with all possible speed, as Judge Johnson's
comprehensive order in Pugh v. Locke, supra, is designed
to do. In the meantime, the existence of such violations should not
be legitimatized by calling them "normal." Nor should the Court
accept them as justifying conduct that would otherwise violate a
statute intended to remedy age-old discrimination.

															The Court's error in statutory construction is less
objectionable, however, than the attitude it displays toward women.
Though the Court recognizes that possible harm to women guards is
an unacceptable reason for disqualifying women, it relies instead
on an equally speculative threat to prison discipline supposedly
generated by the sexuality of female guards. There is simply no
evidence in the record to show that women guards would create any
danger to security in Alabama prisons significantly greater than
that which already exists. All of the dangers -- with one exception
discussed below -- are inherent in a prison setting, whatever the
gender of the guards. Page 433 U. S. 343 The Court first sees women guards as a threat to security
because "there are few visible deterrents to inmate assaults on
women custodians." Ante at 433 U. S. 336 .
In fact, any prison guard is constantly subject to the threat of
attack by inmates, and "invisible" deterrents are the guard's only
real protection. No prison guard relies primarily on his or her
ability to ward off an inmate attack to maintain order. Guards are
typically unarmed, and sheer numbers of inmates could overcome the
normal complement. Rather, like all other law enforcement officers,
prison guards must rely primarily on the moral authority of their
office and the threat of future punishment for miscreants. As one
expert testified below, common sense, fairness, and mental and
emotional stability are the qualities a guard needs to cope with
the dangers of the job. App 81. Well qualified and properly trained
women, no less than men, have these psychological weapons at their
disposal.

															The particular severity of discipline problems in the Alabama
maximum security prisons is also no justification for the
discrimination sanctioned by the Court. The District Court found in Pugh v. Locke, supra, that guards "must spend all their
time attempting to maintain control or to protect themselves." 406
F. Supp. at 325. If male guards face an impossible situation, it is
difficult to see how women could make the problem worse, unless one
relies on precisely the type of generalized bias against women that
the Court agrees Title VII was intended to outlaw. For example,
much of the testimony of appellants' witnesses ignores individual
differences among members of each sex, and reads like "ancient
canards about the proper role of women." Phillips v. Martin
Marietta Corp., 400 U.S. at 400 U. S. 545 .
The witnesses claimed that women guards are not strict
disciplinarians; that they are physically less capable of
protecting themselves and subduing unruly inmates; that inmates
take advantage of them as they did their mothers, while male guards
are strong father figures Page 433 U. S. 344 who easily maintain discipline, and so on. [ Footnote 2/2 ] Yet the record shows that the
presence of women guards has not led to a single incident amounting
to a serious breach of security in any Alabama institution.
[ Footnote 2/3 ] And, in any event,
"[g]uards rarely enter the cell blocks and dormitories," Pugh
v. Locke, 406 F. Supp. at 325, where the danger of inmate
attacks is the greatest. Page 433 U. S. 345 It appears that the real disqualifying factor in the Court's
view is "[t]he employee's very womanhood." Ante at 433 U. S. 336 .
The Court refers to the large number of sex offenders in Alabama
prisons, and to "[t]he likelihood that inmates would assault a
woman because she was a woman." Ibid. In short, the
fundamental justification for the decision is that women, as
guards, will generate sexual assaults. With all respect, this
rationale regrettably perpetuates one of the most insidious of the
old myths about women -- that women, wittingly or not, are
seductive sexual objects. The effect of the decision, made I am
sure with the best of intentions, is to punish women because their
very presence might provoke sexual assaults. It is women who are
made to pay the price in lost job opportunities for the threat of
depraved conduct by prison inmates. Once again, "[t]he pedestal
upon which women have been placed has . . . , upon closer
inspection, been revealed as a cage." Sail'er Inn, Inc. v.
Kirby, 5 Cal. 3d 1 , 20,
485 P.2d 529, 541 (1971). It is particularly ironic that the cage
is erected here in response to feared misbehavior by imprisoned
criminals. [ Footnote 2/4 ]

															The Court points to no evidence in the record to support the
asserted "likelihood that inmates would assault a woman because she
was a woman." Ante at 433 U. S. 336 .
Perhaps the Court relies upon common sense, or "innate
recognition," Brief for Appellants 51. But the danger in this
emotionally laden context is that common sense will be used to mask
the " romantic paternalism'" and persisting discriminatory
attitudes Page 433 U. S.
346 that the Court properly eschews. Ante at 433 U. S. 335 .
To me, the only matter of innate recognition is that the incidence
of sexually motivated attacks on guards will be minute compared to
the "likelihood that inmates will assault" a guard because
he or she is a guard. The proper response to inevitable attacks on both female and
male guards is not to limit the employment opportunities of
law-abiding women who wish to contribute to their community, but to
take swift and sure punitive action against the inmate offenders.
Presumably, one of the goals of the Alabama prison system is the
eradication of inmates' antisocial behavior patterns, so that
prisoners will be able to live one day in free society. Sex
offenders can begin this process by learning to relate to women
guards in a socially acceptable manner. To deprive women of job
opportunities because of the threatened behavior of convicted
criminals is to turn our social priorities upside down. [ Footnote 2/5 ]

															Although I do not countenance the sex discrimination Page 433 U. S. 347 condoned by the majority, it is fortunate that the Court's
decision is carefully limited to the facts before it. I trust the
lower courts will recognize that the decision was impelled by the
shockingly inhuman conditions in Alabama prisons, and thus that the
"extremely narrow [bfoq] exception" recognized here, ante at 433 U. S. 334 ,
will not be allowed "to swallow the rule" against sex
discrimination. See Phillips v. Martin Marietta Corp., 400
U.S. at 400 U. S. 545 .
Expansion of today's decision beyond its narrow factual basis would
erect a serious roadblock to economic equality for women.

															[ Footnote 2/1 ]

															Section 703(e), 42 U.S.C. § 2000e 2(e), provides in pertinent
part:

															"(1) it shall not be an unlawful employment practice for an
employer to hire and employ employees . . . on the basis of . . .
sex . . . in those certain instances where . . . sex . . . is a
bona fide occupational qualification reasonably necessary to the
normal operation of that particular business or enterprise. . .
."

															[ Footnote 2/2 ] See, e.g., App. 111-112, 117-118, 144, 147, 151-153,
263-264, 290-292, 301-302. The State Commissioner of Corrections
summed up these prejudices in his testimony:

															"Q Would a male that is 5'6', 140 lbs., be able to perform the
job of Correctional Counselor in an all male institution?"

															"A Well, if he qualifies otherwise, yes."

															"Q But a female 5'6', 140 lbs., would not be able to perform all
the duties?"

															"A No."

															"Q What do you use as a basis for that opinion?"

															"A The innate intention between a male and a female. The
physical capabilities, the emotions that go into the psychic
make-up of a female vs. the psychic make-up of a male. The attitude
of the rural type inmate we have vs. that of a woman. The superior
feeling that a man has, historically, over that of a female." Id. at 153.

															Strikingly similar sentiments were expressed a century ago by a
Justice of this Court in a case long since discredited:

															"I am not prepared to say that it is one of [women's]
fundamental rights and privileges to be admitted into every office
and position, including those which require highly special
qualifications and demanding special responsibilities. . . . [I]n
my opinion, in view of the particular characteristics, destiny, and
mission of women, it is within the province of the legislature to
ordain what offices, positions, and callings shall be filled and
discharged by men, and shall receive the benefit of those energies
and responsibilities, and that decision and firmness which are
presumed to predominate in the sterner sex." Bradwell v.
Illinois , 16 Wall. 130, 83 U. S. 139 , 83 U. S. 142 (1873) (Bradley, J., concurring).

															[ Footnote 2/3 ]

															The Court refers to two incidents involving potentially
dangerous attacks on women in prisons. Ante at 433 U. S.
335 -336, n. 22. But these did not involve trained
corrections officers; one victim was a clerical worker, and the
other a student visiting on a tour.

															[ Footnote 2/4 ]

															The irony is multiplied by the fact that enormous staff
increases are required by the District Court's order in Pugh v.
Locke, 406 F.
Supp. 318 (MD Ala.1976). This necessary hiring would be a
perfect opportunity for appellants to remedy their past
discrimination against women, but, instead, the Court's decision
permits that policy to continue. Moreover, once conditions are
improved in accordance with the Pugh order, the problems
that the Court perceives with women guards will be substantially
alleviated.

															[ Footnote 2/5 ]

															The appellants argue that restrictions on employment of women
are also justified by consideration of inmates' privacy. It is
strange indeed to hear state officials who have for years been
violating the most basic principles of human decency in the
operation of their prisons suddenly become concerned about inmate
privacy. It is stranger still that these same officials allow women
guards in contact positions in a number of non-maximum security
institutions, but strive to protect inmates' privacy in the prisons
where personal freedom is most severely restricted. I have no
doubt, on this record, that appellants' professed concern is
nothing but a feeble excuse for discrimination.

															As the District Court suggested, it may well be possible, once a
constitutionally adequate staff is available, to rearrange work
assignments so that legitimate inmate privacy concerns are
respected without denying jobs to women. Finally, if women guards
behave in a professional manner at all times, they will engender
reciprocal respect from inmates, who will recognize that their
privacy is being invaded no more than if a woman doctor examines
them. The suggestion implicit in the privacy argument that such
behavior is unlikely on either side is an insult to the
professionalism of guards and the dignity of inmates.

															MR. JUSTICE WHITE, concurring in No. 76-255 and dissenting in
No. 76-422.

															I join the Court's opinion in Hazelwood School Dist. v.
United States, No. 76-255, ante p. 433 U. S. 299 , but
with reservations with respect to the relative neglect of applicant
pool data in finding a prima facie case of employment
discrimination and heavy reliance on the disparity between the
area-wide percentage of black public school teachers and the
percentage of blacks on Hazelwood's teaching staff. Since the issue
is whether Hazelwood discriminated against blacks in hiring after
Title VII became applicable to it in 1972, perhaps the Government
should have looked initially to Hazelwood's hiring practices in the
1972-1973 and 1973-1974 academic years with respect to the
available applicant pool, rather than to history and to comparative
workforce statistics from other school districts. Indeed, there is
evidence in the record suggesting that Hazelwood, with a black
enrollment of only 270, hired a higher percentage of black
applicants than of white applicants for these two years. The
Court's opinion, of course, permits Hazelwood to introduce
applicant pool data on remand in order to rebut the prima
facie case of a discriminatory pattern or practice. This may
be the only fair and realistic allocation of the evidence burden,
but arguably the United States should have been required to adduce
evidence as to the applicant pool Page 433 U. S. 348 before it was entitled to its prima facie presumption.
At least it might have been required to present some defensible
ground for believing that the racial composition of Hazelwood's
applicant pool was roughly the same as that for the school
districts in the general area before relying on comparative
workforce data to establish its prima facie case.

															In Dothard v. Rawlinson, No. 76-422, I have more
trouble agreeing that a prima facie case of sex
discrimination was made out by statistics showing that the Alabama
height and weight requirements would exclude a larger percentage of
women in the United States than of men. As in Hazelwood, the issue is whether there was discrimination in dealing with
actual or potential applicants; but, in Hazelwood, there
was at least a colorable argument that the racial composition of
the area-wide teacher workforce was a reasonable proxy for the
composition of the relevant applicant pool, and hence that a large
divergence between the percentage of blacks on the teaching staff
and the percentage in the teacher workforce raised a fair inference
of racial discrimination in dealing with the applicant pool. In Dothard, however, I am unwilling to believe that the
percentage of women applying or interested in applying for jobs as
prison guards in Alabama approximates the percentage of women
either in the national or state population. A plaintiff could, of
course, show that the composition of the applicant pool was
distorted by the exclusion of non-applicants who did not apply
because of the allegedly discriminatory job requirement. But no
such showing was made or even attempted here; and although I do not
know what the actual fact is, I am not now convinced that a large
percentage of the actual women applicants, or of those who are
seriously interested in applying, for prison guard positions, would
fail to satisfy the height and weight requirements. Without a more
satisfactory record on this issue, I cannot conclude that appellee
Rawlinson has either made out a prima facie case for the
invalidity of the restrictions or otherwise proved that she was Page 433 U. S. 349 improperly denied employment as a prison guard. There being no
showing of discrimination, I do not reach the question of
justification; nor, since she does not meet the threshold
requirements for becoming a prison guard, need I deal with the
gender-based requirements for contact positions. I dissent from the
Court's judgment in Dothard insofar as it affirms the judgment of
the District Court.