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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

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: Two male attendants at an Indiana psychiatric hospital sued for sex discrimination. 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, not women.

The hospital won the case when it became clear that William Keller and Ronnie Gullion couldn’t prove that only men were made to subdue patients. Plus, even if they had managed to prove that women weren’t required to subdue patients, the facility was prepared to show that a male’s strength was essential for safely restraining them. (Keller, et al., v. Indiana Family & Social Services, 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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