민권법상 성차별 고용행위와 진정직업자격(BFOQ)의 인정범위

다국어 초록 (Multilingual Abstract)

Title VII of the Civil Richts Act of 1964 is the primary statute which prohibits employers from gender discrimination against employees. However, under Title VII, employer is offered the statutory defense of the bona fide occupational qualification(BFOQ) that allows employer to intentionally discriminate employees or applicants in their business based on gender when discriminatory employment practice is reasonably necessary to the normal operation of the business. If an employer is successful in offering the BFOQ defense, gender discrimination is legally permitted. While the regulations of BFOQ looks straight forward and the Supreme Court of the United States has held that the BFOQ defense should be interpreted narrowly, in application, the gender BFOQ is riddled with inconsistencies within case law related. According to the gender BFOQ case law, Courts considering a BFOQ defense analyze the claim under the 'Tamiami' test and the 'essence of business' test, and courts often consider whether any reasonable alternatives exist to eliminate the discrimination. Employers attempt to elicit the BFOQ defense in variable contexts, employers' efforts are typically rejected on account that the BFOQ exception is intended to be extremely narrow. Currently, in general, the gender BFOQ defense is only successful in three main contexts: privacy, safety, and authenticity, almost any other motive such as gender stereotypes, customer preference, and sex appeal in the commercial sex industry will be refuted. The real problem is, in author's tiny view and humble opinion, although courts uphold the gender BFOQ defense based especially on privacy or rarely on safety, these motives are little more than customer preferences and gender stereotypes in disguise. Even though gender stereotypes and customer preferences have been expressly denied as valid gender BFOQ motives by courts and clearly gender stereotypes are the main target to be defeated by Title VII, gender stereotypes result in a discriminatory double standard in employment and society, even in courts. In the meaning of foregoing, serious concerns arise when privacy or rarely safety BFOQs are actually premised on stereotypes, because permitting a gender BFOQ which is based on privacy or safety with gender stereotypes in reality is to approve gender stereotypes legally and prolong these harmful stereotypes eternally. Here, the author of this shabby article, me, would like to suggest to call and watch these 'privacy requested by customer preference formed from or based on gender stereotypes' as 'contaminated privacy'. And this contaminated privacy should be distinguished from the genuine one which must be confined to the degree that, I maintain, an unfulfilled privacy customer preference may inflict a dignitary harm on an individual as a human being. Regarding safety based BFOQ, because Title VII vests employees with the right to take on unsafe and dangerous tasks, safety based solely on the employees' should be rejected but when the safety of third party is indispensible to the essence of business and also it may cause the failure of the business without gender based hiring in spite of her or his ability, I think, can be acceptable and reasonable. This dummy, the author, frankly neither can point at where gender differences exist or even if there are in real, nor explain whether they are inherent or socially learned. The gender BFOQ defense is not without problem and very harmful to certain group, however, balance of the rights and genuine need of gender based employment brought me to think the existence of the gender BFOQ is appropriate and reasonable in order to protect social values oriented to break 'glass ceiling' someday in the future.

목차 (Table of Contents)

• I. 머리말
• II. 성차별 고용행위와 진정직업자격
• 1. 민권법상 성차별 고용행위 금지 규정
• 2. 진정작업자격
• 3. 진정작업작격에 관한 찬반론
• III. 진정작업자격의 인정범위
• 1. 판례법의 태도
• 2. 검토 및 분석
• IV. 맺음말
• 참고문헌
• Abstract

참고문헌 (Reference)

1 피용호, "미국법상 해고자유원칙에 관한 학설의 입장과 META를 통한 검토" 한국비교사법학회 14 (14): 1257-1290, 2007

2 김엘림, "고용상의 성차별의 개념과 판단기준" 한국노동법학회 (15) : 2002

3 Larry Alexander, "What Makes Wrongful Discrimination Wrong? Biases, Preferences, Stereotypes, and Proxies" (149) : 1992

4 Kathy Miriam, "Stopping the Traffic in Women: Power, Agency and Abolition in Feminist Debates over Sex-Trafficking" (1) : 2005

5 K. Antony Appiah, "Stereotypes and the Shaping of Identity" (41) : 2000

6 Kingsley R. Brown, "Sex and Temperament in Modern Society: A Darwinian View of the Glass Ceiling and the Gender Gap" (971) : 1995

7 Craig Robert Senn, "Proposing a Uniform Remedial Approach for Undocumented Workers under Federal Employment Discrimination Law" (113) : 2008

8 Kimberly A. Yuracko, "Private Nurses and Playboy Bunnies: Explaining Permissible Sex Discrimination" (147) : 2004

9 Suzanne Wilhelm, "Perpetuating Stereotypical Views of Women: The Bona Fide Occupational Qualification Defense in Gender Discrimination Under Title VII" (73) : 2007

10 Tobin A. Sparling, "Judicial Bias Claims of Homosexual Persons in the Wake of Lawrence v. Texas, 46 S" (255) : 2004

11 Richard A. Epstein, "Forbidden Grounds: The Case Against Employment Discrimination Laws" Harvard University Press 1992

12 Jillian B. Berman, "Defining the 'Essence of the Business': An Analysis of Title VII's Privacy BFOQ after Johnson Controls" (749) : 2000

13 Stephen F. Befort, "BFOQ Revisited: Johnson Controls Halts the Expansion of the Defense to Intentional Sex Discrimination" (5) : 1991