Реферат: Bona Fide Occupational Qualification Bfoq Essay Research

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.

Bibliography

REFERENCES

Greenlaw, Paul S.; Kohl, John P. “Employer “Business” and “Job” Defenses in Civil Rights Actions”, Public Personnel Management, Winter 94, Volume 23, Issue 4, pp. 573-584.

Greenlaw, Paul S., Lee, Robert D. Jr. “Professional Notes- Sex and Employment Law: A Partial Catalog”, pp 57-72.

Hawke, Constance. “Nursing a Fine Line: Patient Privacy and Sex Discrimination”. Nursing Management, Chicago, October 1998, Volume 29, Issue 10, pp. 56-61.

Kovacic-Fleischer, Candance Saari. “United States v. Virginia’s New Gender Equal Protection Analysis with Ramifications for Pregnancy, Parenting, and Title VII”. Vanderbilt Law Review, Nashville, May 1997, Volume 50, Issue 4, pp. 845-915.

Reiland, Ralph R. “Save Millions in Damages, Go Topless”. Restaurant Hospitality, Cleveland, November 1997, Volume 81, Issue 11, pp. 152-154.

Sovereign, Kenneth L., Personnel Law, Fourth Edition, 1999, pp 38,91-92,352.

EEOC Guidelines On Sex Discrimination, http://www.lalabor.com/

Office of Equal Employment Opportunity, Discrimination Based on Gender or Sexual Orientation, http://www.niehs.nih.gov/oeeo/sex.htm/

Proving Discrimination, http://www.discriminationattorney.com/providing.htm/

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