Back in July, I posted about the perils of gender based hiring.  I pointed out that a company can “discriminate” based on protected characteristics (except race), when that characteristic is what is called a “Bona Fide Occupational Qualification” (“BFOQ”). To be a BFOQ, being a member of that group is essential to the job.

Recently, yet another employer, a home care services provider in Washington State, found themselves in trouble with the Department of Labor’s Office of Federal Contract Compliance Programs when a review of hiring practices found that 77 male applicants had been denied full consideration for employment as home health care aids.

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ResCare, the company at issue, claimed that the majority of their clients, who were female, had requested female caregivers.  However, and importantly, the company lacked any evidence to establish that its female clients did indeed prefer female caregivers.  Most of the client care plans lacked any indication of gender preference and a survey sample of these clients further indicated that most clients did not have a gender preference.

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This company likely would have been able to demonstrate a BFOQ for its hiring practices if the client care plans had actually included documentation showing that clients preferred or requested a female care giver.  Obviously due to the intimate nature of home health care, gender preference, had it been documented, likely rises to the level of BFOQ.  While customer preference, alone, is generally not sufficient to satisfy gender discrimination in hiring. Where the customer preference is coupled with legitimate privacy issues of the customer, i.e. related to health or hygiene care, such discrimination is generally acceptable. See E.E.O.C. v. Mercy Health Center, 1982 WL 3108 (W.D. Okl., Feb. 02, 1982); Fesel v. Masonic Home Inc., 447 F. Supp. 1346 (D. Del. 1978).

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Dori K. Stibolt is a senior associate with the law firm of Fox Rothschild LLP. Dori defends and counsels management in labor and employment litigation matters pertaining to wage and overtime claims, discrimination, harassment, retaliation, leave/restraint, and whistle-blower claims. You can contact Dori at 561-804-4417 or dstibolt@foxrothschild.com.