“While the statute of limitations is an affirmative defense, the burden of establishing an exception thereto is on plaintiff.”
How later courts described this case
- “While the statute of limitations is an affirmative defense, the burden of establishing an exception thereto is on plaintiff.”
Written by the judges who cited it.
The opinion
CUDAHY, Circuit Judge,
dissenting:
I respectfully dissent from the majority opinion. I would be pleased to join almost all of Judge Easterbrook’s eloquent dissent except for its disposition of the case. Here I join Judge Posner’s equally cogent statement, which adopts the BFOQ standard but advocates remand for a full trial on that basis. It may (and should) be difficult to establish a BFOQ here but I would afford the defendant an opportunity to try. 1 I *902 agree with Judge Easterbrook that this “is likely the most important sex-discrimination case in any court since 1964 ...” and its painful complexities are manifestly unsuited for summary judgment. In any event, the BFOQ defense is clearly the only one the statute allows in this disparate treatment case. It is unfortunate that the majority gives a new life of sorts to the result-oriented gimmickery of Wright v. Olson Corp., 697 F.2d 1172 (4th Cir.1982).
It is a matter of some interest that, of the twelve federal judges to have considered this case to date, none has been female. This may be quite significant because this case, like other controversies of great potential consequence, demands, in addition to command of the disembodied rules, some insight into social reality. What is the situation of the pregnant woman, unemployed or working for the minimum wage and unprotected by health insurance, in relation to her pregnant sister, exposed to an indeterminate lead risk but well-fed, housed and doctored? Whose fetus is at greater risk? Whose decision is this to make? We, who are unfortunately all male, must address these and other equally complex questions through the clumsy vehicle of litigation. At least let it be complete litigation focusing on the right standard.
' On this issue, I disagree with Judge Easter-brook’s conclusion that the BFOQ standard *902 could never be satisfied in a case such as this. As Judge Posner’s dissent suggests, the BFOQ defense need not be narrowly limited to matters of worker productivity, product quality and occupational safety. The employer may permissibly consider the possible risks to (even potential) third parties in the normal course of business decisionmaking. However, the employer must demonstrate "a factual basis for believing that all or substantially all women would be unable to perform safely [i.e., without inordinate risk to third parties, including fetuses] and efficiently the duties of the job involved." Weeks v. Southern Bell Tel. & Tel. Co., 408 F.2d 228, 235 (5th Cir.1969). As Judge Easterbrook notes in discussing the disposition of this case under the Wright-Hayes standard, substantial factual questions remain concerning whether occupational exposure to lead presents a substantial risk to the fetus, whether this risk is transmitted only through the pregnant woman and whether less restrictive alternatives would adequately safeguard the employer's interest in fetal health and safety. So long as it is understood that the burden to prove these matters rests on the employer, and that this burden may not be met by unsubstantiated hypotheses or claims of scientific uncertainty, see Torres v. Wisconsin Dep’t of Health & Social Servs., 859 F.2d 1523, 1533-34 (7th Cir.1988) (en banc) (Cu-dahy, J., dissenting), I am comfortable with allowing the employer at least the opportunity to attempt to meet this demanding standard.