Is this a Bona Fide Occupational Qualification?

CASE DESCRIPTION

The primary subject matter of this case concerns human resource management, particularly the issues of discrimination, and the Bona Fide Occupational Qualification (BFOQ) exception to Title VII of the civil rights act and the Age Discrimination in employment act. This case has a difficulty level of three to four, and is appropriate for an upper division, undergraduate level. This case is designed to be taught in one class hour, and is expected to require two to three hours of outside preparation by students.

CASE SYNOPSIS

This case examines the Bona Fide Occupational Qualification (BFOQ) exception in discrimination cases. Title VII of the Civil Rights Act of 1964 prohibits discrimination based on race, color, religion, sex or national origin. The Age Discrimination in Employment Act expands this protection to cover age discrimination against people over 40. However, there is an exception, the BFOQ. Under certain circumstances, an employer can discriminate, if age, gender or national origin can be shown to be a legitimate requirement, in order to perform the job. In this case, the BFOQ is defined, the criteria for a BFOQ are listed, and the limits to BFOQ are discussed. Several real examples are given of cases in which a company has alleged a BFOQ exists. Students are asked to examine each example, and determine which, if any are legitimate BFOQs. The main focus of this case is to teach students to apply the criteria from Title VII of the civil rights act BFOQ exemption, to real situations.

INSTRUCTORS' NOTES

RECOMMENDATION FOR TEACHING APPROACHES

I have often found that students do not clearly understand the concept of Bona Fide Occupational Qualifications, without seeing specific examples of BFOQs. This case was designed to help clarify this particular issue, in a manner that allows insightful discussion of the topic.

Generally, the approach I take with this is to divide the class up into small groups, and assign them each one or more of the cases to discuss. Then each group will present their determinations to the class, and we will discuss, as a whole, whether the analysis picked up the important facets of the case. Each of these cases is based on a specific real situation, and all but one have been decided in a court of law. The specifics of each case follow:

CASE 1--ROLE MODEL

This is based on two specific cases. The first is Robinson vs. Kenosha Youth foundation. In this case the Wisconsin Labor and Industry Review Commission determined that it was a legitimate BFOQ, to require male counselors for positions in which they were to provide same-sex role models for pre-delinquent male children. Similarly, in Stonecipher vs. DILHR, a The Dane County (WI) Circuit court upheld sex as a BFOQ for child care workers in a juvenile detention center, based on the need to provide same-sex role models. To answer the specific questions the students are to reply to:

1) Is this practice discriminatory? Yes, this practice discriminates based on sex of the applicant.

2) Is the BFOQ defense legitimate? Yes. Providing a same-sex role model for children, particularly delinquent, or pre-delinquent children, has been upheld as a BFOQ.

3) Why, or why not?

Psychologists can show compelling evidence of a relationship between same-sex role models, and the success of programs designed to avoid delinquency, or rehabilitate delinquents.

CASE 2--FAA REGULATIONS

This case is the case of Western Air Lines Inc. Vs. Criswell 472 U.S. 400 (1985). This particular case was decided by a U.S. District court, and appealed to the U.S. Supreme Court. The Supreme Court upheld the district court decision, which found that age was not a BFOQ.

1) Is this practice discriminatory?

Yes, age is being used as the determining factor in hiring.

2) Is the BFOQ defense legitimate?

According to the U.S. District court, and upheld by the U.S. Supreme court, no.

3) Why, or why not?

In order for a qualification to be a legitimate BFOQ, all or nearly all of the excluded group must be incapable of performing the work. While the airline was able to establish that more people over 60 were incapable of performing the duties, they could not convincingly show that the whole class of workers was unable. In fact, the airline used individual testing to determine fitness of its under 60 employees, and there was no reason that they could not continue to assess the fitness of the employees on an individual basis, once they hit 60. The plaintiffs in this case also used the practices of other airlines, who allowed flight engineers over 60, and had not had problems from doing so, to rebut the airline's claim.

CASE 3--SEX SELLS

This case is loosely based on several suits filed against Hooters. Most notably, a class action suit was filed against the chain by 7 males who applied for wait staff positions, and were rejected based on their sex. Hooters settled the case in 1997 for $ 3.75 million, avoiding a legal decision in the case. The lack of a court decision is an important item to note, as they avoided a legal condemnation of their business as unacceptable. This leaves the actual BFOQ question unanswered. The specifics of the settlement raise more questions than they answer.

1) Is this practice discriminatory?

Yes, men are not considered for wait staff "hooters girl" positions.

2) Is the BFOQ defense legitimate?

There is not clear unambiguous legal precedent. On the side arguing no, there is the fact that Hooters was forced to pay $3.75 to settle a class action suit, thereby supporting the idea that they were doing something wrong. However, on the side arguing BFOQ, they point to the fact that the settlement allows Hooters to continue their operations, with an all female wait staff. However, they were required to make some other positions (eq. bartender and host) gender neutral.

3) Why, or why not?

One issue to discuss here, is the centrality of "vicarious sexual recreation," to their business model. Hooters says the "Hooters girl" experience is a central part of their business model. Opponents say that Hooters operates as a restaurant, not a sex show, and therefore the sex of the wait staff is not an important facet of the business model.

It should be pointed out at this point, that business operating sex shows (strip clubs) have successfully defended sex discrimination as a BFOQ. The sex of the stripper is crucial in the delivery of the desired service to the customer. On the opposite side, it should be pointed out that customer preference is not an acceptable BFOQ. Whether the majority of customers in a truck stop prefer that a female waitress serve their eggs and toast, is irrelevant. If a male waiter can do the job, then the fact that the customer would prefer a female is irrelevant. It might also be pointed out that customer preference was one of the arguments that many businesses attempted to use to defend race discrimination, during the 1960s.

CASE 4--THE NURSE

This is based on the case Slivka vs. Camden Clarke Memorial Hospital (2004). The details of the case are exactly as described in the main portion of this paper.

1) Is this practice discriminatory?

Yes, sex is used as a criterion for hiring

2) Is the BFOQ defense legitimate?

According to the West Virginia Supreme Court, Yes.

3) Why, or why not?

In determining the BFOQ in this case, the court focused on the privacy of the patient. Due to the highly personal nature of obstetrics, and the necessity for the patient to have their private parts exposed during examinations, requiring same sex nurses was determined to be an allowable BFOQ. This was in spite of evidence that other hospitals successfully used male obstetric nurses. In fact, the plaintiff in this case, Mr. Slivka, had served previously as an obstetrics nurse at Marietta Memorial Hospital.

REFERENCES

The ADEA and Forced Retirement retrieved 2/01/2005 from http://www.135steward.org/472us400.htm

State EEO Newsletter retrieved 2/01/2005 from http://www.wvf.state.wv.us/eeo/April%202004%20Newsletter.htm

Title VI of the Civil Rights Act of 1964 retrieved 2/01/2005 from www.eeoc.gov/policy/vii.html

The Wisconsin Equal Rights Decision Digest retrieved 2/01/2005 from http://www.dwd.state.wi.us/lirc/e127.htm

Neal F. Thomson, Columbus State University