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Carefully craft bona fide occupational qualification limits

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in Discrimination and Harassment,Human Resources

Some jobs can be handled only by someone of a particular gender. For example, a dress model necessarily has to be female. Under the sex discrimination provisions of Title VII, employers may limit those jobs to members of one sex and refuse to hire members of the opposite sex.

This is the so-called bona fide occupational qualification (BFOQ) exception.

The BFOQ is strictly limited. In fact, employers that want to exclude one sex must make absolutely sure that they can justify their decisions. That justification can’t be based on stereotypical views of what jobs men and women can do. It must be based on the conclusion that using one sex is “reasonably necessary to the normal operation of that particular business or enterprise.” That’s a tough burden.

Recent case:
Ersol Henry and Terri Lewis worked as security guards for a juvenile detention facility. Both women had worked for the detention center for years, earning solid incomes because they had seniority and were able to put in for plenty of overtime and night work, which paid a premium over first or second shifts.

For years, the detention center locked up juveniles for most of the day and night, which meant that security guards spent most of their shifts simply walking the halls and checking cells through windows in the doors.

Then a new superintendent with a more enlightened view of juvenile corrections arrived on the scene. Reasoning that juveniles might have a better shot at being rehabilitated and staying out of trouble if they were treated less like adult prisoners and more like potential contributors to society, he changed the way the center operated. He created separate pods for males and females and opened dayrooms and classrooms for the inmates.

Under the new arrangement, there was just one female pod. The rest housed male juveniles. The superintendent then notified the guards that on the third shift, female guards would take care of the female pod, but could not work alone in the male pods. As a result, both Henry and Lewis lost out on third-shift assignments and their pay plummeted without the shift differential and overtime opportunities.

Both sued, alleging sex discrimination. The trial court tossed out the case, concluding that sex was a bona fide occupational qualification for guarding the pods. They appealed.

The 7th Circuit Court of Appeals reversed and ordered a trial. The court concluded that the superintendent hadn’t met the strict burden for proving a job has a BFOQ that excludes a sex.

He didn’t have evidence, for example, that it was more dangerous to allow females to guard males or that having opposite sex guards would lead to inmate sexual assaults.

Plus, he hadn’t convinced the court that there weren’t less dramatic ways to further his rehabilitative goals, such as using cameras to monitor guards and inmates. (Henry & Lewis v. Milwaukee County, No. 07-2534, 7th Cir., 2008)

Final note: Always work with counsel to establish a BFOQ.

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