Hospital fails to justify refusal to hire male obstetrical nurses.

The West Virginia Supreme Court has reversed a circuit court's ruling that allowed a hospital to refuse to hire a male nurse to work in obstetrics. The lower court had found that privacy concerns made gender a "bona fide occupational qualification" (BFOQ), which qualifies as an exception to the statutory mandate against discriminatory employment practices. (Slivka v. Camden-Clark Mem'l Hosp., No. 31404, 2004 WL 323199 (W. Va. Feb. 19, 2004).)

Michael Slivka, a registered nurse, had held several positions in obstetrics, including staff nurse in a hospital's obstetrical department, when he applied for a job in the obstetrics unit of Camden-Clark Hospital in Parkersburg, West Virginia. When the hospital told him it would hire only female nurses to work in obstetrics--citing patient privacy, staffing, and quality-of-care issues--Slivka sued. He alleged that Camden-Clark's policy constituted gender discrimination under the West Virginia Human Rights Act.

The Wood County Circuit Court upheld the policy, ruling that gender was a bona fide occupational qualification for the job. The court based its finding on "the privacy concerns of the hospital patients and their families, as well as factual evidence that the presence of male nurses in the obstetrical ward has previously caused, and would continue to cause, conflicts among patients, doctors, and hospital staff."

The supreme court disagreed. "The heart of the dispute is, what are the elements a defendant must prove to establish a gender-based BFOQ when privacy interests are involved,"Judge Joseph Albright wrote for the court. The court applied a two-pronged test that the U.S. Supreme Court used in Dothard v. Rawlinson, in which the Court noted that a BFOQ exception is "meant to be an extremely narrow exception to the general prohibition of discrimination on the basis of sex." (433 U.S. 391 (1977).) Dothard found that gender is a BFOQ only when hiring both sexes would undermine the central mission of the business and when there is a factual basis to believe that one gender could not perform the job duties safely and efficiently.

The West Virginia Supreme Court noted that several other courts have concluded that customer preference based on personal privacy and modesty concerns can be the basis of a gender-based BFOQ. It added a third test that it said is used by most federal courts examining BFOQ cases with privacy concerns: The employer must prove why alternatives to the gender-excluding policy would be impossible or impractical.

In reversing the lower court's ruling, the supreme court cited a lack of evidence from patients themselves and the "vague testimony" of a nurse manager of the obstetrical unit, both of which prevented "further development of the extent of the privacy concerns of the patients." Without this, the court said, it could not apply the other elements of the BFOQ test.

"Without knowing the magnitude of the resistance to male nurses being part of the obstetrical staff, it is difficult to fathom how Camden-Clark could persuasively establish that the essence of its business of patient care would he undermined if it hired male nurses in the obstetrics department ... [and that] realistic alternative methods of operation would be impossible to propose, let alone deem unworkable," Albright wrote. He also noted that the record did not contain information about how other, similar hospitals reconcile the privacy interests of obstetrics patients with the employment rights of male nurses.

"We want to be clear that we are in no way saying that privacy concerns can not support gender as a BFOQ," Albright wrote. But he noted that employers and courts need to "fully examine the factual basis for these practices."

The court remanded the case for further proceedings.