No one ever said that employment discrimination law was always easy, or that a bright line existed in every situation.  There are balancing tests, and burdens shifting like pendulums, and exceptions to exceptions.  The best of intentions, and intuition, sometimes do not lead us to the correct result.

Elliot Lasson, Executive Director of a non-profit organization in Maryland called “Joblink,” which assists qualified job seekers identify suitable employment opportunities, has brought to our attention such a situation which has arisen at a Baltimore-area medical facility.  The Baltimore Sun reports that a male nurse spotted an ad touting an all-female OB-GYN practice and complained that the exclusion of qualified men was discriminatory.

Is it?

We don’t know the percentage of OB-GYN practictioners by gender, nor do we know of any studies which report the preferences of patients for male v. female practitioners.  Does it matter?

The facility argues that being female is an OB-GYN “BFOQ” – a “bona fide occupational qualification,” which is a recognized defense under Title VII.  The Sun, in fact, cites the preference of some women for female practitioners as a reason for the exclusionary policy: “Some women are more comfortable with a female doctor because of the sensitive nature of exams or because they believe another woman better understands their needs.”

Cornell’s blog defines the scope of a BFOQ defense as follows:  “Title VII permits you to  discriminate on the basis of religion, sex, or national origin in those  instances where religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business or enterprise.’  This narrow exception has also been extended to discrimination based on age through the Age  Discrimination in Employment Act (ADEA). This exception does not apply to discrimination based on race.”

The EEOC opined in 2002 that “The Supreme Court has interpreted the BFOQ exception narrowly. See International Union, UAW v. Johnson Controls, 499 U.S. 187, 201 (1991). Accordingly, the refusal to hire an individual based on stereotyped characterizations of the sexes will not warrant the application of the BFOQ exception. 29 C.F.R. § 1604.2(a)(1)(ii). Nor, generally speaking, will customer or client preferences for one gender over another excuse an employer’s use of sex as an explicit criteria in employment decisions. 29 C.F.R. §1604.2(a)(1)(iii)(emphasis added).”

So does it matter if, hypothetically, most women prefer female practitioners?  Does the bodily intimacy or privacy interests of the patient matter?  Or does Title VII in this case trump the BFOQ defense as regards to “client preferences?”

The EEOC says that “Some courts have recognized that sex may be a BFOQ where the legitimate privacy interests of an employer’s clients or customers might otherwise be compromised. Courts accepting a privacy-based rationale generally have done so only in cases where employers have argued that a sex-based criteria was necessary in order to protect the bodily privacy interests of patients or customers from members of  the opposite sex.”

Law professor Marley S. Weiss was quoted as saying that if men can do the job then the policy may not hold up under scrutiny.  “I do not think patient preference is a legitimate basis for engaging in sex-based exclusion from hiring here, and I especially don’t think that argument stands up when at one facility they hire men and at the other they do not [there are two related facilities here].  Are they actually claiming that their patients in Columbia are more sexually private or shy or whatever than those they treat in Baltimore? Are they claiming that they have surveyed their patients?”

Elliot commented to me that “I’d like to think of this as similar to a Health Club where it might want locker room attendants of the same gender to work on those respective areas.  It would be reasonable for a patient to have the option of requesting females.”

Does it apply in an OB-GYN practice?