Legal Clinic

Is 'Only Male Applicants Need Apply' Legal?

Wednesday, November 7, 2012
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Question: Our company is comprised of predominantly female employees and we want to increase the number of male workers on our staff.  Would we run into any legal issues if we placed an advertisement for our vacant positions and requested that only male applicants apply?

Answer: Encouraging gender diversity (and diversity in general) in the workplace is certainly an admirable and worthwhile goal for all employers.  However, the process by which this is done -- either through advertising for vacant positions or otherwise -- should be carefully monitored to ensure legal compliance.

Both the legislature and the courts have established certain guidelines that employers should follow in order to avoid running afoul (even unintentionally) of the anti-discrimination laws. 

Title VII of the Civil Rights Act of 1964 ("Title VII" or "the Act") prohibits employers from refusing to hire or otherwise discriminating against an individual on the basis of race, color, religion, sex or national origin.  42 U.S.C. § 2000e-2(a).  While Title VII covers a broad range of discriminatory activity against both current and potential employees, the Act goes even further by expressly prohibiting job advertisements or notices that indicate a preference for applicants based on one of the above-stated protected characteristics unless a very specific exception can be met. 

Specifically, Section 2000e-3(b) of Title VII states that it is unlawful for an employer to "print or publish or cause to be printed or published any notice or advertisement relating to employment by such an employer . . . indicating any preference, limitation, specification, or discrimination, based on race, color, religion, sex or national origin" except where "religion, sex or national origin is a bona fide occupational qualification for employment." This limitation extends not only to employers, but also to employment agencies and labor organizations that may provide recruiting or hiring services for employers. As such, a job advertisement or posting that specifically limits or otherwise indicates a preference for applicants of a certain race, religion, national origin, or sex is expressly prohibited under Title VII in the vast majority of situations.

The Act does, however, provide a singular exception to this rule by permitting job advertisements or postings limiting applicants to a certain religion, national origin or sex if it can be demonstrated that such a designation is a bona fide occupational qualification ("BFOQ") for the job or position in question (note that race or color may never constitute a justified basis for restrictive hiring under Title VII). One area of employment where courts have found sex to constitute a BFOQ within certain, limited factual contexts is healthcare. See, e.g., Veleanu v. Beth Isr. Med. Ctr., 2000 U.S. Dist. LEXIS 13948, at *23 (S.D.N.Y. Sept. 25, 2000) (finding that "healthcare presents unique circumstances that may justify reasonable efforts to accommodate a patient's expression of preference of doctor by gender"). However, the employer carries the burden of proving the existence of a BFOQ, and courts have long construed the BFOQ exception exceptionally narrowly. As such, there have been very few situations in which courts have found that an individual's religion, national origin, or sex was so inextricably linked to a given position that the limitations and protections of Title VII could be justifiably superseded. 

Where an employer seeks to prove that an applicant's sex is a BFOQ for a given position, the United States Supreme Court has stated that the employer must demonstrate a "high correlation between sex and ability to perform job functions." Intl. Union, UAW of Am. v. Johnson Controls, Inc., 499 U.S. 187, 202 (1991). In Johnson Controls, the Court found that an employer's hiring policy that restricted "women who are pregnant or who are capable of bearing children" from being hired or promoted into positions involving exposure to lead was impermissible under Title VII. Id. at 192. In so holding, the Court noted that a BFOQ exception to Title VII on the basis of employee safety "is limited to instances in which sex or pregnancy actually interferes with the employee's ability to perform the job," and cannot be grounded upon broader employer notions of "protection" for either a female worker or an unborn child. Id. at 204. Courts have also held that neither "stereotypic impressions of male and female roles" nor "stereotyped customer preference" (for example, an assertion that customers prefer female rather than male flight attendants) qualify sex or gender as a BFOQ. Fernandez v. Wynn Oil Co., 653 F.2d 1273, 1276-77 (9th Cir. 1981); see also 29 C.F.R. § 1604.2(a)(1) (stating that the Equal Employment Opportunity Commission will find that situations where an applicant is denied employment based on customer preference or stereotypical characterizations of their sex will not warrant the application of the BFOQ exception).

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In addition, courts have held that even if there are aspects of a given job that may necessitate certain restrictions on the basis of a protected characteristic, that characteristic will not be found to be a BFOQ if there are less discriminatory ways to accommodate such restrictions than a blanket restrictive hiring policy. In White v. Department of Correctional Services, 814 F. Supp. 2d 374 (S.D.N.Y. 2011), the court considered whether a correctional facility's job posting excluding female applicants from the position of Officer in Charge ("OIC") was justified because inmate privacy concerns rendered sex a BFOQ of the job, which included such duties as conducting "strip frisks" and taking urine samples from inmates. The court concluded that not only were the majority of the position's stated duties devoid of any inmate privacy concerns, but, for those duties that were privacy-related, there was evidence that male officers could be called upon to conduct the tasks under the supervision of a female OIC. Id. at 385-86. Noting that "[i]n the face of potential alternatives, gender-based hiring is only permissible if the defendant makes a strong showing that such alternatives are not reasonable," the court denied the correctional facility's motion for summary judgment on the BFOQ issue. Id. at 386.      

Title VII's language and the body of case law interpreting the BFOQ exception makes clear that employers should exercise extreme caution before posting any job advertisement or notice that prohibits, restricts or otherwise limits a protected class of individuals from applying, including those of a certain sex -- (even if it is the sex that is over-represented in the business). The mere desire to increase the number of male employees at your company, even if grounded upon the best of intentions, is not sufficient to meet the rigorous standard necessary to demonstrate that sex is a BFOQ for the job. As such, posting a gender-specific job notice is more likely than not only going to serve to greatly increase your exposure on the Title VII litigation front so it is best that you not do it



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