dissenting.
While the ultimate result reached in this case was one that apparently was -not contemplated when the charge was originally filed with the EEOC1 but assuming that the majority opinion nevertheless was procedurally justified in arriving at the ratio decidendi it did, notwithstanding the somewhat tortuous path the litigation took to get there, I cannot, on the facts of this case, agree with the principles applied in determining that an actionable claim has been demonstrated, and I therefore respectfully dissent.
I do accept for the present purposes the statement of what happened as outlined in the majority opinion. Herzon hired a black man to fill a position in the security department which she headed. He was the first black person in the consumer services section of the department. On the very same day, the hospital began receiving bomb threats, only one of which referred to Herzon. In addition to the numerous bomb threats several unexplained fires were started at the hospital. It seems fairly evident that the precipitating causes for the constructive discharge of Herzon were the threatening calls and the setting of the fires. There is no showing in the record as far as I have been able to determine whether the black man himself was discharged.
The majority opinion states that our inquiry in this case is whether an individual who hires a minority applicant because she considers him the best person for the job, and is discharged because she hired a minority applicant, is protected by section 704(a) of the Act. I cannot quarrel too much with the result the majority reached if this were the issue or were the sole inquiry. On the facts of this case, however, it would seem to me that the determinative issue is whether the threats and firesetting that occurred here, which were arguably related to the hiring of the black man, were a justification for the discharge. I find no indication that St. Anne’s Hospital caused her constructively to be discharged because she hired the black person. Rather it was because of the hiring that bombing threats and firesetting did occur, and it was the threats and firesetting which caused the employer to regard it as necessary that she be discharged.
The majority opinion ultimately reaches an analysis of whether the threats and fires justified the action taken by the hospital. Reliance is placed on the so-called “customer preference” cases arising under Title VII, particularly on Diaz v. Pan Am World Airways, Inc., 442 F.2d 385 (5th Cir.), cert. denied, 404 U.S. 950, 92 S.Ct. 275, 30 L.Ed.2d 267 (1971). The situation however was quite different in Diaz where the Pan Am’s passengers overwhelmingly preferred to be served by female stewardesses, and as a result, males were not hired because of their sex. The question before the Fifth Circuit was whether, for the job of flight cabin attendant, being a female was a “bona fide occupational qualification reasonably necessary to the normal operation” of the airline’s business. It is of interest to note that in the discussion of the issue by the court there was reference to the fact that many airlines, including Pan Am, had utilized both men and women flight cabin attendants in the past, and even Pan Am at the time of the suit had 283 male stewards employed on some of its foreign flights. The court also observed:
No one has suggested that having male stewards will so seriously affect the operation of an airline as to jeopardize or even minimize its ability to provide safe transportation from one place to another.
*135442 F.2d at 388. That is not the situation in the present case. I find it difficult to conceive, except perhaps for the traditional crowded theater, any climate or situation in which either a bombing or a fire could be more disastrous than in a hospital where many patients could not be successfully removed in the event of such a catastrophe. It may well be that the people at St. Anne’s overreacted but this also is understandable as they were charged with the preservation of the lives and well-being of a great many people and the duty of securing that welfare. It certainly could have seemed, and apparently did seem, appropriate to place the safety and welfare of the patients above taking a stand which might have jeopardized that safety and welfare. I have difficulty in faulting the hospital for overreacting. It would take a person of great calmness not to react as the hospital officials did.
What I have said here in no way disagrees with the expression in the majority opinion that it would be a sad day if every unqualified threat of violence could make lawful the discharge of an employee for a hiring decision that was itself required by the Act. The situation in this hospital, however, was not “every unqualified threat” but rather was a particularized series of threats and actual fires. As the Fifth Circuit implicitly recognized in Diaz even a minimizing of the ability to provide safe airplane transportation might have produced a different result. In the wording of Diaz, but unlike that case, it appears that the hospital authorities were applying a business necessity test, not a business convenience test, which was the basis of the customer preference cases upon which the majority opinion relies.
In sum, and even assuming an overreaction, we are, or should be, concerned here with whether there was a violation of a statute directed at the elimination of racial discrimination, and not with a questionably poor business judgment call. Yet, it is the latter rather than the former which the majority finds dispositive.
It is unfortunate that in the interest of discouraging discrimination the hospital did not endeavor to take some other steps, but no one, of course, will ever know whether taking other steps might have been followed by a disaster of substantial extent.
. The charge as originally filed alleged employment discrimination based on Herzon’s sex, female, and her religion, Jewish.