Can you legally ban men from ‘female-focused’ jobs?

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in Discrimination and Harassment,Hiring,Human Resources

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 a position. But courts will likely be skeptical if the job can be done by both sexes without violating any laws or with an easy accommodation.

If your company enforces such a policy, re-examine your reasons: Do those reasons constitute a BFOQ? If so, be able to provide clear evidence and support for your policy. One way: Compare your practices to other employers in your industry.

Recent case: A male nurse applied for a staff RN position in a hospital's obstetrical department. He didn't get the job due to the hospital's 20-year policy of hiring only female nurses to work the OB department. The hospital cited patients' privacy concerns.

He sued, claiming the hospital's policy violated state sex discrimination laws, and won. The West Virginia Supreme Court said the hospital lacked proof that patient care or privacy would be undermined if it hired male nurses in the OB department. (Slivka v. Camden-Clark Memorial Hospital, No. 31404, 2004)

Note: The court offered guidance for employers who want to create gender-specific positions as a BFOQ for privacy reasons. For your female-only (or male-only) policy to pass legal muster, it must prove:

1. How the essence or central mission of the business would be undermined by hiring members of both sexes.

2. The fact-based reason why members of one gender couldn't perform the job's essential duties without intruding on privacy concerns.

3. Why alternatives to the one-gender policy would be impossible or impractical.

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