Issue: Some employers want to create male-only or female-only positions, often for privacy reasons.
Risk: You risk a discrimination lawsuit if this policy doesn't have a sound business reason.
Action: Avoid gender-specific positions unless you can prove that gender is an absolute necessity for the job. Review the three-part test below.
Be very leery about setting rules that ban one gender or another from certain positions.
Such a policy may be legal if you can prove that gender is a bona fide occupational qualification (BFOQ) for that position.
But courts will be skeptical if the job can be done by both sexes without violating any laws or with an easy accommodation.
If your organization uses such policies, re-examine your reasons: Do they constitute a BFOQ? Provide clear evidence and support for your policy. One way to do that: Compare your practices to those of other organizations in your industry.
Recent case: A male nurse applied for a staff RN position in a hospital's obstetrics (OB) department. He didn't get the job due to the hospital's 20-year policy of hiring only female nurses to work in that department. The hospital cited patients' privacy concerns.
The male nurse sued, claiming the hospital's policy violated state sex discrimination laws. He won.
The West Virginia Supreme Court said the hospital did not prove that patient care or privacy would suffer if it hired male nurses for the OB department. (Slivka v. Camden-Clark Memorial Hospital, No. 31404, Supreme Ct., W.Va., 2004)
When gender-specific jobs are legal
The court in this case offered guidance for employers who want to create gender-specific positions as a BFOQ for privacy reasons. Here's what you must prove for a female-only (or male-only) policy to pass legal muster:
- How hiring members of both sexes would undermine the essence or central mission of the business.
- The fact-based reason why members of one gender couldn't perform the job's essential duties without intruding on privacy concerns.
- Why alternatives to the one-gender policy would be impossible or impractical.
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