Discriminatory Hiring Policies Continue to Prevail

Stephanie Hallett of Ms. Magazine blogs about the sexist hiring practices prevalent in a Pennsylvania-based hospitality company Hershey Entertainment and Resorts. Jack Tuckner responds to this existing trend –

There’s no question that his advertisement is discriminatory under federal law, and it’s hard to believe anyone would try to defend it with a straight face without sounding like Nathan Thurm, the nervous, sweating, chain smoking lawyer played by Martin Short on SNL.

    A Bona Fide Occupational Qualification (BFOQ) is a defense to acknowledged discrimination under basic civil rights laws, where an employer is permitted to discriminate against an employee on the basis of religion, sex, national origin or age in those instances where those protected statuses are a “bona fide occupational qualification reasonably necessary to the normal operation of the particular business or enterprise.”      On a case by case basis, to determine if a discriminatory policy constitutes a BFOQ, first look at the particular job in question and what it requires to perform it.  Then look to the discriminatory policy and determine if it is necessary to performing that job.  For example, airline pilots are prohibited from serving as captain after reaching the age of 60.  This discriminatory rule is based on the reasonable notion that a pilot’s skills deteriorate with age, and that the safety of the passengers depend most essentially on the captain.    Yet, if a 60 year old pilot is working as a flight engineer, for example, he could not be fired for this reason, as age is not a BFOQ for that position.  This exception also holds true for French restaurants hiring exclusively French-born chefs, for example, but would fail if used to support the failure to hire a non-French janitor, as it’s not “reasonably necessary” to the authenticity of the restaurant.  Similarly, a religious school may discriminate in its hiring decisions regarding its faculty, limiting acceptable religious beliefs to the school’s denomination, but it may not do so with its secretarial hiring decisions, as whether the secretary is Catholic or not has no connection to the integrity of its Catholic identity.

    The employer must prove “plainly and unmistakably” that the admitted discriminatory policy, such as only hiring male “housepersons” meets the terms and spirit of this narrow BFOQ exception to our civil rights statutes.  An employer  must demonstrate (and ultimately prove in court) that its discriminatory practice is “reasonably related” to an essential operation of its business, which is often a common sense analysis, such as, whether a men’s clothing manufacturer would be permitted to advertise to hire only male models (it would).

In the case of this advertised housekeeping position, not only isn’t there a reasonable relationship between the job description given and the male gender of the applicant, there isn’t even an rationale, articulable basis to argue for such a counter-intuitive and just plain silly and obvious sex discriminatory advertisement.  I’m sure the real reason is something as mundane, typical, customary and sad as the owner’s strong preference for hiring only men.