No Men

kmc · June 2008

If nothing else I knew the title would have people looking at this!

We operate a shelter for battered women. When a man is battered we provide other acommadations for him rather than put him in with the women. On the week-end we operated two shifts. 8AM-8PM and 8PM-8AM. We currently have an opening in one of our shelters for the 8PM-8AM shift. Can we leaglly only hire a woman to fill this position? Most of these women are afraid of men and would be uncomfortable with a male in the position.

Thanks

sonny · June 2008

In my opinion you might have a case for a BFOQ but if I were you I would consult with my labor attorney.

That was a good heading and be prepared for what it may start x:D

Dasher · June 2008

Title VII of the Civil Rights Act of 1964 prohibits gender discrimination in the workplace. There is a very narrow exception for bona fide occupational qualifications (BFOQ). You could adapt such a claim in this instance, however, if a suit is brought, your company would have to explain in a court of law why only females could serve in these positions, and then trust that a jury or judge would find it reasonable that a battered woman's "possible" fear of men in general would be justification for gender discrimination in the workplace.

Personally, I would think you would be on shaky ground, and would not advise such an exception.

dbutton111 · June 2008

I agree that BFOQ is pretty narrowly defined. But I also think you'd have a very strong case. I would take bets that EEOC would consider your center similar to the therapy facility mentioned in the below discussion letter.

[url]http://www.eeoc.gov/foia/letters/2005/titlevii_bfoq_psychotherapy.html[/url]

stilldazed · June 2008

If your shelter is women only, and the position will be onsite where the women are housed, you probably have a BFOQ, similar to the way that jails/prisons that house women can limit their staff to women only. However, if you have access to legal counsel, it is always wise to run such decisions then encroach closely on legal limits by the counsel for review.

Generally speaking, if the gender of the worker speaks to heart of your organization's function, you can limit the gender of the worker as an exception to gender neutral hiring. Further, if the position is exposed to intimately private details of your patrons, including areas where they may be undressed or required to undress (exam rooms, changing rooms, bedrooms, bath areas). the need to maintain intimate privacy of your clients would help support the BFOQ.

best wishes,

Susan Desmond MS · June 2008

This is a close question but I would say yes. Before you do it, however, get an employment attorney to give you a written opinion so that you are protected from punitive damages.

I represented a hospital many, many years ago who was undergoing a layoff. Initially, they determined who would be cut by seniority. When they realized that their only three male orderlies were on the list, they changed their method to ensure that the 3 males were not laid off. The reason for needing the orderlies was the fact that some male patients did not want a female performing the very intimate procedures on them that may be required. The court had little difficulty in finding that the hospital had established a BFOQ.

*This response is not intended to be an attorney/client communication. The above statements should not be used as legal advice on a particular matter.

kmc · June 2008

Thanks for all of the great feedback. This was more of a preventive question, although I have had some males apply for the position and their qualifications did not apply to the job description. I appreciate all of your help!

No Men

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