dissenting:
The majority opinion is incorrect because it understates the burden of proof an employer must meet to establish a bona fide occupa*319tional qualification as an exception to the anti-discrimination laws. The Montana Human Rights Act is broader than Title VII of the Civil Rights Act, but the Acts are very similar. This Court has held that reference to federal case law is useful and appropriate in considering questions arising under the Montana Human Rights Act. Snell v. Montana-Dakota Utilities (Mont. 1982), [197 Mont. 56,] 643 P.2d 841, 845, 39 St.Rep. 763, 766. The test in this case ought to be whether the Belgrade Schools have established by the evidence that sex is a bona fide occupational qualification (BFOQ) for the school counselor. The school district in this case has not established that sex is a BFOQ.
There are three phases involved in a Title VII discrimination case. McDonnell Douglas Corp. v. Green (1973), 411 U.S. 792, 802-804, 93 St. Ct. 1817, 1824, 1825, 36 L.Ed.2d 668, 677-679. A plaintiff must show (1) that he belongs to a protected class; (2) the employer sought applicants and he is qualified for the job; but, (3) despite his qualifications, he was rejected. Under phase two, the burden shifts to the employer to prove that his reason for rejecting the applicant was non-discriminatory, that is, was a valid business reason. The burden then shifts back to the plaintiff to establish that the purported business necessity is pretext.
The school board here did not use a neutral standard in its employment policy. It sorted the applicants according to whether they were male or female. They interviewed women and not men. The school board failed however to introduce evidence that only women and not men could act as counselor for high school girls. The majority opinion is written as though the school board had used the ability to counsel female students on personal problems as its standard. The evidence however completely fails to show this.
The District Court’s decision cites a “higher authority” and “facts of life,” but Title VII rejects such romantic paternalism. Rosenfeld v. Southern Pacific Co. (9th 1971), 444 F.2d 1219. There is a need for evidence, which the employer must introduce and prove.
Here the school board should have proved that its business operation would be undermined by not hiring members of one sex exclusively, that there is reasonable cause to believe that all or substantially all men are unable to perform this particular job, and that the sex qualifications in this case is based on actual sexual characteristics and not stereotypical assumption. Dothard v. Rawlinson (1977), 433 U.S. 321, 333, 97 S.Ct. 2720, 2728, 2729, 53 L.Ed.2d 786, 799, 800.
*320Therefore I would reverse for two reasons: (1) The school board’s assumption that only females could act as counselors for female students is not even facially neutral; (2) the school board failed entirely to meet its burden of proof to establish that the essence of counseling would be undermined by the hiring of a male counselor for female students. Under (1) the school board discriminated without more. Under (2) it failed to establish a BFOQ.
MR. JUSTICE MORRISON concurs in the dissent of MR. JUSTICE SHEEHY. MR. JUSTICE SHEA dissents and will file a written dissent later.ORDER
PER CURIAM:On December 28 .1984, an Opinion was filed in the above-entitled causes.
On February 22, 1985, this Court issued an order granting the petition for rehearing and providing that the cause would be submitted to the Court sitting en banc on the briefs previously submitted to the Court without further oral argument.
The Court having now reconsidered the above appeals in their entirety.
IT IS ORDERED:
1. The Opinion of the Court in the above causes, filed herein on December 28, 1984, is hereby reaffirmed in its entirety and constitutes the final Opinion of the Court in this appeal. The Majority Opinion, as authored by Justice JOHN CONWAY HARRISON, is concurred in the Chief Justice J.A. TURNAGE, Justice L.C. GULBRANDSON and Justice FRED J. WEBER.
2. The Dissenting Opinion of Justice JOHN C. SHEEHY filed with the Majority Opinion of the Court is also reaffirmed. Justice FRANK B. MORRISON, Jr., and Justice WILLIAM E. HUNT, Sr., join in the Dissenting Opinion.
3. The Clerk is directed to issue remittitur forthwith.