Protection or Equality? : A Feminist Analysis of Protective Labor Legislation in UAW v. Johnson Controls, Inc. Page: 73

                                
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was a woman. Sex discrimination was tolerated because sex was related to the
guard's ability to do the job-maintaining prison security... (Dothard v.
Rawlinson, Blackmun321).
If the Court considered the discrimination policy as important to the "essence" or
function of the business, it warranted an exclusionary policy. In Dothard, the Court
concluded that exclusion of women was necessary to the safety of the third party,
prisoners. Since a primary function of prison was to maintain security, a female working
in a male sex offenders ward would jeopardize that business. These circumstances
warranted the companies' protection policies for women.
The problems surrounding the BFOQ defense began with the Court's refusal to
establish a consistent criterion for liability costs. As Justice White, Justice Kennedy, and
The Chief Justice wrote in their concurring opinion,
... A fetal protection policy would be justified under the terms of the [BFOQ]
statue if, for example, an employer could show that exclusion of women from
certain jobs was reasonably necessary to avoid substantial tort liability... (UAW
v. Johnson Controls, Inc., White 1196).
The only definitive explanation the Court made toward the BFOQ defense was that
Johnson Controls' fetal protection policy was not a bonafide occupational qualification.
The Court stateed that,
We, of course, are not presented with, nor do we decide, a case in which costs
would be so prohibitive as to threaten the survival of the employer's business.
We merely reiterate our prior holdings that the incremental cost of hiring women