Appellant, Ms. Linda Pond, brought suit against her former employer, Braniff Airways, Inc., alleging unlawful discrimination against appellant because of her sex in violation of the Civil Rights Act of 1964, 42 U.S.C.A. 2000e et seq. She alleged that in filling the position of Customer Service Agent at the Amarillo terminal, Braniff refused to consider her application for transfer and instead selected a non-Braniff male applicant, Mr. Gerald Kern, for the job. She further alleged that Braniff's 5'8' height requirement for the position in question discriminated against women as a class and herself in particular.

After a trial to the Court, the District Judge concluded that Braniff had not discriminated in refusing to select Ms. Pond and that the minimum height requirement for a Customer Service Agent was not used to exclude Ms. Pond from consideration. Because the District Judge's opinion does not sufficiently inform us whether he applied the correct legal standards in reaching his ultimate decision, we must reverse and remand the case for his further consideration and elaboration. We therefore need not reach the issue whether Braniff's 5'8' height requirement was used to discriminate against Ms. Pond.

Ms. Pond (5'4', 145 pounds) had been employed for nearly a year as a reservationist at Braniff's Amarillo terminal when she was notified that her position would be phased out due to a systemwide economy drive by Braniff, and that positions comparable to hers would be made available to herself and other Amarillo reservationists in other cities. Having no desire to leave Amarillo, appellant submitted her application for the position of Customer Service Agent, a job which prior to Braniff's economy move was filled by a woman handling predominantly secretarial duties.

At the time Ms. Pond applied, however, the job's character had changed radically. The person who would fill the position had to be able to handle not only the desk work of a normal Customer Service Agent but also occasionally the physical labor of loading and unloading baggage and freight usually done by a cargo worker. For example, a Braniff employee-witness testified at trial that a Customer Service Agent might have to assist in the loading or unloading of up to several hundred pounds of cargo as unseemly as rock bins and caskets. It was also Braniff's opinion that because of the size of the Boeing 727 aircraft that normally flew in and out of the Amarillo terminal, it would take a person of considerable height-- in Braniff's opinion at least 5'8' or over-- to be able to reach the latches on the cargo bin doors.1

After submitting her application for the position, Ms. Pond had a discussion with Mr. O. B. Robbins, the local manager of the Amarillo terminal, at which time he told her he did not think a woman could handle the job of Customer Service Agent because of the job's strenuous lifting and reaching requirements. Shortly thereafter, a non-Braniff applicant, Mr. Gerald Kern, was hired for the position. In contrast to Ms. Pond, Mr. Kern was 6'4' tall and weighed 175 pounds.

After being denied the job, Ms. Pond filed a complaint with the Equal Employment Opportunity Commission alleging Braniff discriminated against her on the basis of sex in refusing to hire her. During the EEOC investigation, appellant was referred by Braniff to a doctor in an apparent attempt to convince both the EEOC and Ms. Pond she was not physically qualified for the more strenuous activities involved in being a Customer Service Agent. The doctor's opinion, however, was that Ms. Pond was physically fit and 'could lift within her ability', although at trial he did state that for the particular position in question as between herself and Kern Ms. Pond was not the better qualified applicant.

Ms. Pond likewise filed a grievance under the collective-bargaining agreement in force between Braniff and her union, the Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station Employees. The grievance was based on a clause in the union contract which would presumably give Ms. Pond, as a Braniff employee with seniority, an absolute right to the job of Customer Service Agent over a non-Braniff applicant if Braniff determined she were fit and able to handle the job.2 The results, if any, of arbitration areas of yet unknown.

At trial it was stipulated that although provisions of the union contract would not be considered as a basis in themselves for the discrimination suit, they could have an evidentiary bearing and relevancy to the issue of whether or not there had been any discrimination.3

After hearing the evidence, the District Judge concluded in his Memorandum Opinion4 that Braniff did not discriminate in summarily hiring Mr. Kern because he was bigger and thus ipso facto better able to handle the physical requirements of being a Customer Service Agent, and that the 5'8' requirement was not used to exclude Ms. Pond from consideration for the job.

To begin with, we are not at all certain that in reaching his conclusion of non-discrimination, the District Judge either applied the correct legal standards as required by Title VII or fully considered all the ramnifications of his decision. There are too many questions left unanswered by the Memorandum Opinion that must be resolved before we as an appellate court can pass on either the correctness of the conclusions of law or the sufficiency of the evidence in general. In the remainder of this opinion, therefore, we undertake to elucidate what we consider to be the correct legal framework within which the District Judge should view this case on remand as well as some of the problems and inconsistencies we find in the simple viewing of this particular fact situation as posing the sole question whether it was discriminatory under Title VII to select a larger male over a smaller female for a job involving heavy lifting.

We begin our analysis by recognizing that the situation presented by this case is certainly a novel one upon which few courts have had an opportunity to rule. The bulk of sex discrimination cases in our Circuit have dealt with situations where an employer, in attempting to exclude a woman or women as a class from a particular position, has relied solely on the Bona Fide Occupational Qualification under 42 U.S.C.A. 2000e-2(e)(1)5 as a defense to their actions.6 In the present situation, however, Braniff chose specifically not to rely upon the very narrowly construed BFOQ exception, but rather asserts that no discrimination took place at all.

Of course it is true, as urged by Braniff, that where an employer can demonstrate no discrimination in the selection or advancement of employees, but rather that the employer in the best of faith merely weighed each person's talents then choosing the man over the woman (or the woman over the man), no case is made out under Title VII.7 But the inquiry does not necessarily stop here. Courts must be extremely careful to determine that the reasons given for selecting a male applicant over a female applicant are not simply a ruse disguising true discrimination. Courts must further carefully scrutinize the employer's explanations for its conduct once the aggrieved employee has proved a prima facie case of discrimination. If the capacity or competency distinction upon which the employer's selection is based inheres in the nature of an employee as a man or a woman, or if the employer in any way permits stereotypical culturally-based concepts of the abilities of people to perform certain tasks because of their sex to creep into its thinking, then Title VII will come to the employee's aid.8 The line that must be drawn is a fine one-- because interpreting an employer's motives on the basis of its actions is at times hazardous, especially when there exists potentially valid and seemingly plausible business explanations as to such actions which in fact mask a true intent to discriminate.

Where the only basis in a record for finding that a male employee-applicant was more qualified than a female are factors directly relatable to sex-- the attributed capacity of a male to lift bigger and better boxes-- then we are not at all certain that a fact finding of nondiscrimination can stand when no objective tests were given either applicant to determine their physical abilities to perform the job in question. We do not at all intimate that in every instance where an employer must select between a male and female employee for a position involving heavy lifting, that the employer must necessarily objectively determine their physical capacities. The lack of such an objective determination, however, may ultimately be considered as evidence of the employer's good or bad faith and the use of a permissible or non-permissible criteria.9

We are troubled a good deal by the interplay of the union contract granting Ms. Pond absolute seniority rights for this job if Braniff determined she were qualified accepting its interpretation at face value.10 We must take into account as the District Court indicated, the union contract since it may establish the special status of an employee by virtue of its contractual terms and thereby form a basis from which a deviation could indicate an intent to discriminate.11 Nonetheless, no mention is made of the union contract or Ms. Pond's rights thereunder in the District Court's Memorandum Opinion. If it were admitted as it seems to be that Ms. Pond had an absolute seniority right under the contract to the job of Customer Service Agent should Braniff determine she were qualified, Braniff's actions in regard to summarily rejecting Ms. Pond are difficult to explain. This leads us to another fact of the same problem.

On the one hand, Braniff chooses not to rely upon the BFOQ12 which, if properly proven, would permit Braniff justifiably to reject a female applicant for a position involving extremely heavy lifting based solely on the fact that she was a female.13 Yet, on the other hand, from our reading of the record, Braniff offers no explanation as to why Ms. Pond was never given a chance to demonstrate she was qualified and have Braniff evaluate more than just her superficial credentials of being a 5'4', 145 pound female. Braniff comes dangerously close, in our opinion, to relying on the BFOQ without having to actually assert or prove it.

In sum, we think that the District Judge did not go far enough in his analysis of the case by stating that Braniff did not discriminate in choosing a larger and heavier male for the job. We have set forth in our opinion what we consider to be the correct legal standards as well as additional factual considerations for the District Court to ponder on remand. It also goes without saying that once Ms. Pond has proved a prima facie case of discrimination, the burden must shift to Braniff to either disprove discrimination or demonstrate its actions were covered under the BFOQ defense.

We therefore reverse and remand this case for reconsideration, redetermination, and the making of appropriate findings and conclusions in light of this opinion, on the present record or on a supplemental record as the parties think is wise or as directed by the District Court.

Reversed and remanded.