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One sex always does the dirty work? Be prepared to show that it’s essential

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in Discrimination and Harassment,Human Resources

If supervisors disproportionally push either men or women to perform certain distasteful or dangerous tasks, you could face a sex discrimination claim.

If that happens, you had better be prepared to show that gender is a bona fide occupational qualification for the tasks.

Recent case: Psychiatric attendant William Keller and nurse Ronnie Gullion worked at a mental health facility. They claimed that whenever a patient needed to be subdued during a mental health crisis, only men were called on to do that dangerous work.

They sued, alleging sex discrimination.

The employer won the case when it became clear that Keller and Gullion couldn’t prove that only men were made to subdue patients. Moreover, if the two had managed to show that women weren’t required to subdue patients, the facility was prepared to show that being a man was essential for safely restraining them. (Keller, et al., v. Indiana Family & Social Services Administration, et al., No. 09-3071, 7th Cir., 2010)

Final note: In this case, the mental health facility was prepared to show that it was essential to use men to perform dangerous work. However, it’s usually not the case that one sex or another is uniquely suited for a particular task. The facility might have been on safer ground if it had designated a position such as orderly for the task and then hired anyone, male or female, who could demonstrate the physical ability to subdue patients.

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