Good intentions don't equal a Bona Fide Occupational Qualification

by on December 12, 2008 · 0 Comment POSTED IN: HR Info Center

Is it gender discrimination to assign women to a particular job or shift in order to promote diversity? You might think the answer’s clearly no.

But it’s more complicated than that. In a recent case in St. Louis, such thinking stuck the police department with a gender discrimination suit it couldn’t shake.

BFOQ for female officers?

What happened was this: The only female officer on the night watch transferred out. The district captain, a woman, thought it was important to have women on the watch, so officers could search female suspects and interview domestic violence victims.

The captain scheduled six women officers to rotate through the unpopular night watch. The officers said this was sex discrimination. The captain dropped the rotation and instead put three women officers on permanent night duty.

They sued, claiming the captain’s action was both gender discrimination and retaliation for their complaint. The court refused to throw the suit out.

No ill-will

The problem wasn’t that the captain had ill-will against the officers. The captain testified that she wanted female officers on the night watch to promote diversity, and ensure proper treatment of women suspects and victims.

The problem, the court said, was that the city didn’t prove being female was a Bona Fide Occupational Qualification, BFOQ, that permitted otherwise-forbidden gender discrimination. Just having good intentions wasn’t enough.

Caution: It’s hard to prove a BFOQ. If you think a job requires a certain gender, have a detailed rationale ready before proceeding. Just a feeling that it would be better to have a woman, or a man, in the position isn’t enough to stand up in court.

Cite: Duckworth v. St. Louis Metro Police Dept., No. 4:03CV1696, E.D. Mo., 8/25/06.

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