.. (Kovacic-Fleischer, p 859). The VMI case is one of disparate treatment and disparate impact discrimination. The Court’s decision not only required VMI to admit women, but also to make changes in barracks living and physical skill requirements to provide equal opportunity to women. VMI could have avoided these requirements by stating it their admissions policy, “all women willing to live without privacy in the military style barracks and able to perform feats of great upper body strength may apply” (Kovacic-Fleischer, p.859).
If the Court had ordered VMI to admit women without changing any of its practices, those practices could have been labeled as neutral practices that have a disparate impact on women. This would cause disparate impact upon women, because few women would want to live without privacy among men and even fewer would have greater upper body strength than men would. If women claimed that unchanged barracks practices and physical skill requirements had a disparate impact upon them, in the context of Title VII litigation, this would be sufficient to make the prima facie case. The women would then need to show that VMI instituted these practices with the intent to exclude women. VMI’s defense would be showing that these practices were necessary to its business. The outcome of this case resulted in VMI making reasonable accommodations for women.
The Supreme Court effectively required VMI, which intentionally discriminated against women to alter their housing arrangements and physical skill requirements to accommodate women. Hooters Restaurant Hooters came under fire after the EEOC made allegations that it had violated Title VII of the Civil Rights Act by discriminating against men. In 1992, seven men argued that Hooters discriminated against them when they refused to hire them as wait staff. Hooter’s chose to hire only female servers, bartenders and hosts. As a defense, Hooters claimed that they were providing “vicarious sexual recreation”.
Hooters attempted to use female sexuality as a BFOQ, which would have worked if they were in the entertainment business. However, Hooter’s markets itself as a family restaurant. In this case, the courts looked at the essential nature of the business. Hooters, portrays itself to the public as a restaurant, not a sex business, therefore Hooter’s BFOQ did not hold up in court. In the settling class action suit that challenged its right to hire only women in front-of-house positions, Hooters agreed to pay $2 million to the males who were denied the opportunity to serve as Hooter girls, $1.75 million in attorney’s fees and to create three gender neutral positions.
Wait staff, will still be Hooters Girls, but they will now be assisted by “Hooter’s Persons” hired without regard to gender. Male Nurses/Nurse Assistants A manager may make hiring decisions based a number of criteria: education, experience, personality, even “gut feelings”. Nurse managers, responding to perceived patient privacy needs, sometimes hire applicants based on gender. The patient privacy issue concerns personal patient care, including bathing, dressing, or toileting assistance. As the frequency of this type of interaction occurs, a patient may claim that their privacy rights have been violated. This example will discuss whether employers can legally refuse to hire or assign male nurses to positions where the privacy rights of their patients are involved.
One of the earlier cases under Title VII was brought on by a private duty male nurse who alleged that the hospital engaged in sex discrimination by not allowing him to care for female patients. On two occasions this male nurse was assigned to provide private nursing care to female patients. Before he entered the prospective patient’s rooms, hospital staff informed him the he couldn’t work for the female patients because he was a male. Since he never tended the patient, he was never paid. The court found that the hospital had discriminated against him based on his sex by denying him access to the patients and not allowing the individual patient to determine whether to accept the male nurse’s services (Hawke, p.59).
In Fesel v. Masonic Home of Delaware (Hawke, p.59), an institution used the privacy rights of female patients in their defense. A residential retirement home with a predominately female clientele denied a male nurse employment. The district court required the employer to prove that it had a factual basis for believing a male nurse would undermine the essence of the employers business. The employer also had to show that he couldn’t assign the job responsibilities in such a way that there would be minimal clash between the privacy of the customers and the non-discrimination principle of Title VII (Hawke, p.59).
Based on affidavits of female guests objecting to care by male nurses, the court established that the employer had successfully established a BFOQ defense based on the privacy interests of its clientele. The court distinguished the privacy rights of patients from mere customer preference (Hawke, p.59). Not all cases involving patient care turn out the same. In 1991, the Ohio Supreme Court decided Little Forest Medical Center v. Ohio Civil Right Commission (Hawke, p.60).
The medical center denied a male applicant a nursing assistant position because of his sex. The center served 256 elderly patients, the majority of who were female. The Ohio court determined that the employer didn’t establish BFOQ because they couldn’t prove that the policy protected its patient’s privacy rights, nor did the center demonstrate why it couldn’t assign male nurse assistants to male patients and non-objecting females. Health care employers contemplating sex-based hiring should take proactive measures to support a BFOQ in the event of litigation. There are three tests that the courts apply in BFOQ defenses.
1. Can the employer provide statistical evidence derived from patient surveys/questionnaires or affidavits from patients attesting that they object to having an opposite sex employee care for their intimate needs? (Hawke, p. 5) 2. Do the opinions of health care experts, also recognized by the courts as providing a “factual basis,” agree with the defendant’s claim? (Hawke, p.5) 3. Could the health care employer have made any adjustments to accommodate the hiring or assignment of a male nurse or nursing assistant, while still protecting the interest of the female patient? (Hawke, p.5) CONCLUSION Title VII was designed to protect employees from sex discrimination in employment actions.
Employers may prefer a certain gender for a specific job or position. He may or may not have a valid reason for this preference. Should he ever be challenged as to why he hired, fired or promoted unfairly, he must be prepared to defend his decision. BFOQ as a defense in sex discrimination cases will only prevail if the employer can show the discrimination is reasonably necessary to the operation of that business. An employer can avoid exposure to litigation by following guidelines for employers as outlined by the EEOC.