loyer who intentionally discriminates on the basis of sex can defend on the ground that a gender qualification is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business. Courts have held that BFOQ as a defense is narrow and that job qualification must relate to the essence of the business. Although VMI is not an employer with respect to its students, the application of Title VIIs BFOQ defense and disparate impact analysis can still be used in this example. The VMI case involves governmental disparate treatment based on gender because the Commonwealth of Virginia intentionally treated women differently from men by excluding them from a military college. VMI openly admitted this disparate treatment in their all-male admissions policy. VMI argued accommodating women would destroy its adversative method. They attempted to use BFOQ as a defense arguing the necessity of not destroying a method that was essential to its institutional identity. The Court held that VMI had not met its burden of proving the defense, because some women could benefit from the program and the projected negative consequences were speculative and based on stereotypes (Kovacic-Fleischer, p 859). The VMI case is one of disparate treatment and disparate impact discrimination. The Courts decision not only required VMI to admit women, but also to make changes in barracks living and physical skill requirements to provide equal opportunity to women. VMI could have avoided these requirements by stating it their admissions policy, all women willing to live without privacy in the military style barracks and able to perform feats of great upper body strength may apply (Kovacic-Fleischer, p.859). If the Court had ordered VMI to admit women without changing any of its practices, those practices could have been labeled as neutral practices that have a disparate impact on women. This would cause disparate imp...
