Bohemian Club v. Fair Employment & Housing Com.

Facts

The statutory framework. The Fair Employment and Housing Act is, in the court’s words, “a comprehensive scheme for the realization of the state’s public policy ‘to protect and safeguard the right and opportunity of all persons to seek, obtain, and hold employment without discrimination or abridgement on account of race, religious creed, color, national origin, ancestry, physical handicap, medical condition, marital status, sex, or age.’” (187 Cal.App.3d at p. 8, quoting Gov. Code, § 12920.) Two statutory provisions framed the dispute. First, the definitional carve-out: under Government Code section 12926, subdivision (c), the term employer “does not include a religious association or corporation not organized for private profit.” (Id. at p. 8.) Second, the affirmative defense at the heart of this note: the FEHA “provides that a discriminatory employment practice is not unlawful if it is based upon a ‘bona fide occupational qualification’ (hereafter BFOQ). (Gov. Code, § 12940.)” (Id. at p. 19.)

The Club. The Bohemian Club is described by the court as “a distinguished private nonprofit association whose membership is limited to men professing devotion to the arts,” with “a long and honorable history since its inception more than a century ago.” (187 Cal.App.3d at p. 7.) Its “approximately 2,000 members are chosen by a highly selective process,” being “interviewed extensively” and required to be “devoted to the arts, or willing to participate in artistic activities.” (Ibid.) The Club operates at two sites: the City Club in San Francisco and the Grove, “a 2,500-acre camping area near Monte Rio, California,” where members “attend concerts, theatrical and musical productions, oratorical presentations, lakeside talks and other functions.” (Ibid.)

The hiring policy. The Club “permanently employs 90 men” in San Francisco, and “[w]omen are employed in positions which do not require their presence at Club functions” — accounting, administration, the print shop, room cleaning, and food service “for members’ private parties.” (187 Cal.App.3d at pp. 7–8.) At the Grove, roughly 10 permanent staff “supervise a temporary work force of 250 men hired during the annual retreats.” (Id. at p. 8.) Critically for the analysis that followed, the Club hires impersonally: “employees are primarily hired through union referrals,” and a food servers’ union member testified that “to his knowledge, referrals from the union have never been refused.” (Ibid.) When the union cannot supply a worker, “the Club goes to the state employment department and sometimes even hires ‘off the street.’” (Ibid.)

The non-fraternization rule. The record established a strict separation between members and staff. Waiters “are not permitted to remain in the dining room at the City Club during the Thursday night club functions” and “are strictly instructed to maintain relations with members at a minimal, exclusively business level.” (187 Cal.App.3d at p. 8.) The general manager “conceded that Grove employees are prohibited from fraternizing with members, and testified as well that employees are not permitted use of the swimming facilities.” (Ibid.) This concession, repeatedly invoked by the court, proved fatal to the Club’s associational and BFOQ defenses alike.

Procedural history

The Department of Fair Employment and Housing “filed an accusation against the Bohemian Club . . . for alleged violations of the Fair Employment and Housing Act,” charging a “discriminatory hiring policy which systematically excluded women” from all jobs at the Monte Rio camp and most positions in San Francisco. (187 Cal.App.3d at p. 6.) The Club denied that it was a covered employer and, alternatively, “asserted that male gender is a bona fide occupational qualification” and that the FEHA was “preempted by title VII of the 1964 Civil Rights Act.” (Ibid.)

An administrative law judge “ruled that male gender is a bona fide occupational qualification at the Club.” (187 Cal.App.3d at p. 6.) The Fair Employment and Housing Commission “rejected the judge’s findings and conclusions and issued its own findings and decision ordering the Club to institute an affirmative action program to employ women in both San Francisco and Monte Rio.” (Ibid.) The Club then petitioned the superior court for a writ of mandamus under Code of Civil Procedure section 1094.5. (Id. at p. 7.) The trial court held that “(1) Title VII preempts the FEHA; and (2) even if the FEHA is not preempted, male gender is a bona fide occupational qualification,” and it went further, dismissing “the underlying accusation against the Club.” (Ibid.) The Club was awarded costs but denied attorney’s fees. (Ibid.) Both the Commission and the Department appealed; the Club cross-appealed the fee denial. (Ibid.)

The opinion also records that, “[i]n the aftermath of attendant publicity, the Commission learned for the first time that the trial judge had participated in the Club’s activities, and the Commission’s request that he disqualify himself was denied.” (187 Cal.App.3d at p. 7.) The Court of Appeal, in an opinion by Newsom, J., with Racanelli, P. J., and Holmdahl, J., concurring, reversed in all substantive respects, affirmed only the fee denial, and directed the trial court “to reinstate the Commission’s findings.” (Id. at p. 24.) The Supreme Court denied review on February 26, 1987.

Issue

The appeal presented four questions, which the court took in sequence: (1) whether the Bohemian Club, “as a private nonprofit corporation, is subject to the antidiscrimination provisions of the Fair Employment and Housing Act” (187 Cal.App.3d at p. 8); (2) whether “the forced hiring of women violates members’ constitutional right of association” such that the FEHA’s inclusion of private clubs is unconstitutional (id. at p. 10); (3) whether the FEHA is “preempted by Title VII,” which exempts private clubs from its own reach (id. at p. 14); and (4) the question on which this note focuses — whether “male gender is a bona fide occupational qualification for Club employees which justifies its exclusion of female employees.” (Id. at p. 18.)

Holding

Reasoning

Statutory coverage: “religious” modifies both nouns. The court found the exemption language “ambiguous,” because it was “not clear whether ‘religious’ only modifies ‘association’ or whether it also refers to a nonprofit corporation.” (187 Cal.App.3d at pp. 8–9.) Legislative history resolved it. When first enacted, the predecessor exemption reached “a social club, fraternal, charitable, educational or religious association or corporation not organized for private profit,” but “the Legislature deleted social clubs, as well as fraternal, charitable, and educational organizations from the statutory exemption.” (Id. at p. 9.) Invoking the canon that “‘[w]here the amendment of a statute consists of the deletion of an express provision, the presumption is that a substantial change in the law was intended,’” the court reasoned that deleting charitable organizations — “which are by nature nonprofit” — “clearly indicates that the term religious was intended to modify both ‘association’ and ‘corporation not organized for private profit.’” (Ibid.) The court distinguished Isbister v. Boys’ Club of Santa Cruz, Inc. (1985) 40 Cal.3d 72, noting that the high court there “did not interpret the FEHA’s exemption provision” and had quoted it only in part, omitting the dispositive word “religious.” (Id. at p. 9, fn. 2.)

Standard of review: substantial evidence, not independent judgment. The Club argued that forced hiring implicated a “fundamental vested right” of free association, triggering independent-judgment review under Strumsky v. San Diego County Employees Retirement Assn. (1974) 11 Cal.3d 28. (187 Cal.App.3d at pp. 10–11.) The court disagreed, concluding that “such associational or privacy interests of members as are implicated do not rise to the level of fundamental vested interests,” so “the conventional substantial evidence test was the proper standard.” (Id. at p. 11.) It hastened to add, however, that the choice of standard did not matter: “given the state of the evidence we are able to resolve such issues as a matter of law,” regardless of which test applied. (Id. at p. 11, fn. 3.)

Freedom of association: Roberts governs, and the member–employee bond is not “intimate.” The Club leaned on sweeping language from Gilmore v. City of Montgomery (1974) 417 U.S. 556 and Justice Goldberg’s concurrence in Bell v. Maryland (1964) 378 U.S. 226 about the right “to close his home or club to any person.” (187 Cal.App.3d at pp. 11–12.) The court answered that these statements “have been significantly modified” by Roberts v. United States Jaycees (1984) 468 U.S. 609, which protects only “‘intimate’ and ‘expressive’ associational rights.” (Id. at p. 12.) Applying the Roberts factors — “size, purpose, policies, selectivity, congeniality, and other characteristics” — the court drew a sharp line between membership and employment: “while the Club’s membership policy is extremely selective, and the consequent relationship among members is undoubtedly ‘intimate’ in associational terms, the same cannot be said for the associational rights of members vis a vis employees.” (Id. at pp. 12–13.) The non-fraternization rule was decisive: “the existence of that rule renders implausible any assertion that the Club’s ‘intimate’ associational rights would be infringed by hiring female employees.” (Id. at p. 13.)

The court engaged — and rejected — the Club’s most evocative testimony. William F. Buckley, Jr., “himself a Bohemian,” testified that women employees at the Grove “‘would make so critical a difference . . . that I would certainly forfeit my sense of allegiance to it.’” (187 Cal.App.3d at p. 13.) The court treated such testimony with respect but no deference: “Such feelings — however sensitive and genuine — are not afforded constitutional protection . . . for . . . the right to freedom of association only protects ‘highly personal’ relationships.” (Id. at pp. 13–14.) A footnote tartly observed “that, as the record here shows, during World War II the Club employed women without apparent damage to its tradition.” (Id. at p. 13, fn. 6.) And even assuming some infringement, the court held it “justified by the state’s compelling interest in eradicating employment discrimination,” citing Hishon v. King & Spalding (1984) 467 U.S. 69 for the principle that “‘[i]nvidious private discrimination . . . has never been accorded affirmative constitutional protections.’” (Id. at p. 14.)

Preemption: the FEHA furthers, rather than frustrates, Title VII. Title VII exempts a “bona fide private membership club” from its definition of employer (187 Cal.App.3d at p. 15, fn. 8), and the Club argued that section 1104 of the 1964 Act therefore invalidated the FEHA’s contrary coverage. The court distinguished the Club’s authority, Kemerer v. Davis, as a dispute “involv[ing] two federal statutes,” not the state-power question presented here. (Id. at pp. 15–16.) Drawing on the savings clause, section 708, and on Shaw v. Delta Air Lines, Inc. (1983) 463 U.S. 85, the court reasoned that “‘Title VII is neutral on the subject of all employment practices it does not prohibit,’” so states “may extend ‘their nondiscrimination laws to areas not covered by Title VII.’” (Id. at p. 17.) The dispositive test is purpose-driven: “the term ‘inconsistent’ must be interpreted by focusing primarily upon whether a law furthers Title VII’s goal of eliminating employment discrimination.” (Ibid.) Because including private clubs “in no way hinders Title VII’s overriding objective,” the FEHA was not preempted. (Ibid.)

The BFOQ defense: the two-part test and the customer-preference bar. Reaching the question that anchors this note, the court began from first principles: although the FEHA permits a BFOQ defense under Government Code section 12940, “the availability of a BFOQ defense is ‘an extremely narrow exception to the general prohibition of discrimination on the basis of sex.’” (187 Cal.App.3d at p. 19, quoting Dothard v. Rawlinson (1977) 433 U.S. 321, 334.) The court then articulated the controlling two-part test. First, drawing on Weeks v. Southern Bell Telephone & Telegraph Company (5th Cir. 1969) 408 F.2d 228, the employer “‘has the burden of 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.’” (Ibid.) Second, even on such a showing, “the employer must also ‘bear the burden of proving that because of the nature of the operation of the business they could not rearrange job responsibilities . . .’ in order to reduce the BFOQ necessity.” (Ibid.) The court found the Commission’s regulations “in harmony with federal law,” requiring proof that “the essence of the business operation would otherwise be undermined,” and excluding from BFOQ justification “[c]ustomer preference for employees of one sex.” (Id. at pp. 19–20, quoting Cal. Admin. Code, tit. 2, §§ 7286.7, subd. (a), 7290.8.)

Applying the test: Diaz, Fernandez, and the “tangential” character of male camaraderie. The court anchored its application in two federal cases the trial court had wrongly dismissed as inapposite. In Diaz v. Pan Am. World Airways, Inc. (5th Cir. 1971) 442 F.2d 385, the airline’s evidence that “passengers overwhelmingly preferred female flight attendants” did not save a sex-based hiring rule: “‘Before sex discrimination can be practiced, it must not only be shown that it is impracticable to find the men that possess the abilities that most women possess, but that the abilities are necessary to the business, not merely tangential.’” (187 Cal.App.3d at pp. 20–21.) In Fernandez v. Wynn Oil Co. (9th Cir. 1981) 653 F.2d 1273, even evidence that “South American customers might refuse to deal with women” failed, because the court found “‘no factual basis for linking sex with job performance.’” (Id. at p. 21.) Together, the court held, “Both Fernandez and Diaz stand for the proposition that BFOQ defenses cannot be established on the basis of stereotypical gender-based assumptions.” (Ibid.)

Measured against that standard, the Club’s evidence — the camaraderie testimony of former Governor Edmund G. Brown and other members — failed. The members’ preference “is presumably based upon assumptions concerning the inhibiting effect women employees might have upon men,” but “[t]hese are, however, mere stereotypical assumptions, lacking in any factual basis.” (187 Cal.App.3d at p. 21.) Because of “the nonfraternization policy and lack of selectivity in hiring employees, such male fellowship as might exist between club members and employees is . . . clearly in a legal sense tangential.” (Ibid.) The court rejected the trial court’s view that Diaz and Fernandez were limited to “commercial enterprises”: “That the Club is a private club does not exempt it from high legal authority which unequivocally declares that employment decisions cannot be predicated upon ‘stereotyped characterizations of the sexes.’” (Ibid.) Tellingly, the relationship between members and employees was “almost exclusively commercial in nature,” with employees “hired ‘sight-unseen’ through union referrals,” “the only selection criteria . . . gender and the appearance of ability to do the job.” (Id. at pp. 21–22.)

Privacy did not rescue the defense. The Club argued that unenclosed showers and bathrooms at the Grove, where “members walk about the camp in various states of undress,” established a privacy-based BFOQ. (187 Cal.App.3d at p. 22.) The court held the point self-defeating because “enclosed shower and bathroom facilities are available,” so “[i]f a member chooses not to use the enclosed facilities, no legally enforceable right of privacy is impaired.” (Ibid.) Citing Forts v. Ward (2d Cir. 1980) 621 F.2d 1210, the court reasoned that a preference for nudity cannot be permitted to “eliminate equal employment opportunities” where a privacy-protective alternative exists. (Id. at pp. 22–23.) “In sum, Diaz and Fernandez establish that customer preference cannot form the basis of a BFOQ defense,” and so “male gender is not a BFOQ for Club employees.” (Id. at p. 23.)

The remaining issues. The court affirmed the denial of attorney’s fees under Government Code section 800, because “the word ‘may’ in section 800 indicates that the award is discretionary,” and the case “‘involved . . . novel and complicated issues’” and was “‘a bona fide legal dispute of great importance.’” (187 Cal.App.3d at pp. 23–24.) Finally, the court agreed that the Commission “had no authority to decide issues not raised in a pending case,” because under the Administrative Procedure Act it “is only empowered to hold a hearing and issue a decision when an accusation, based upon a complaint, is pending before the agency,” and no accusation had issued on the misfiled Carol Esses class complaint. (Id. at p. 24.)

Significance

Bohemian Club is a landmark California application of the federal BFOQ jurisprudence — Dothard, Weeks, and Diaz — to a state FEHA claim, and it stands for the proposition that the prestige, tradition, or social character of an employer buys it no relief from the antidiscrimination laws. The decision firmly imports the two-part BFOQ test into FEHA practice: the employer must prove both a factual basis that “all or substantially all” members of the excluded sex cannot perform the job, and the impossibility of rearranging job responsibilities to reduce the asserted necessity. (187 Cal.App.3d at p. 19.) It also entrenches the customer-preference bar — the principle that a clientele’s genuine, even unanimous, preference for one sex is legally irrelevant. (Id. at pp. 21, 23.) This aligns FEHA squarely with CACI No. 2501, which instructs juries that the BFOQ defense is “an extremely narrow exception,” the very phrase the court quotes from Dothard.

The opinion is equally important for separating membership from employment. By holding that the member–employee relationship is not “intimate” under Roberts, the court confined the constitutional refuge for private associations to relationships among members — and even there left open whether truly intimate or expressive associations might prevail. The decision’s reach is genuinely cabined, however, by footnote 13: the Club remained free to prove that “male gender is a BFOQ for particular employment positions.” (187 Cal.App.3d at p. 24, fn. 13.) The court rejected a categorical, all-jobs exclusion grounded in atmosphere, not the possibility that some discrete position might genuinely require one sex.

Key quotes

“At the same time, however, the availability of a BFOQ defense is ‘an extremely narrow exception to the general prohibition of discrimination on the basis of sex.’” (Bohemian Club, supra, 187 Cal.App.3d at p. 19.)

“These are, however, mere stereotypical assumptions, lacking in any factual basis. Moreover, because of the nonfraternization policy and lack of selectivity in hiring employees, such male fellowship as might exist between club members and employees is . . . clearly in a legal sense tangential.” (Id. at p. 21.)

“That the Club is a private club does not exempt it from high legal authority which unequivocally declares that employment decisions cannot be predicated upon ‘stereotyped characterizations of the sexes.’” (Id. at p. 21.)

Read the full opinion (free full text · Justia)→

Practice pointer

Open questions

BFOQ for particular positions. The court expressly reserved whether some specific job at the Club might support a sex-based BFOQ: its judgment “in no way precludes the Club from attempting to demonstrate that male gender is a BFOQ for particular employment positions.” (187 Cal.App.3d at p. 24, fn. 13.) The opinion rejects only an across-the-board exclusion premised on atmosphere.

Expressive association. The court declined to reach the Club’s “expressive” associational claim, explaining: “We need not address the question of whether the Club’s ‘expressive’ right of association would be infringed because the thrust of the Club’s argument is that the presence of women would destroy the intimate all-male atmosphere.” (187 Cal.App.3d at p. 14, fn. 7.) Whether a more sharply pleaded expressive-association defense could succeed for a private club remained undecided.

Members as members. The court was careful to confine its holding to employment: “nothing in the discussion which now follows bears upon the wholly separate issue of women as members.” (187 Cal.App.3d at p. 12.) The Club’s all-male membership policy was not before the court and was not adjudicated.

The review-standard question. Because the court resolved the substantive issues “as a matter of law” regardless of the applicable standard, its conclusion that the substantial-evidence test governed was not strictly necessary to the judgment and was so framed. (187 Cal.App.3d at p. 11 & fn. 3.)