The U.S. Equal Employment Opportunity Commission

EEOC Office of Legal Counsel staff members wrote the following informal discussion letter in response to an inquiry from a member of the public. This letter is intended to provide an informal discussion of the noted issue and does not constitute an official opinion of the Commission.


Title VII: BFOQ

March 5, 2002

Dear :

This is in response to your letter to Chair Dominguez dated January 15, 2002 in which you requested, on behalf of your client , technical assistance in complying with state and federal EEO laws. Specifically, you asked whether your client, a provider of child care, pre-school and school-aged educational services, could require that only female staff members be placed in positions relating to diaper changing tasks in infant classrooms in order to ensure the safety of these infants who are not yet capable of speaking.

The Commission is responsible for enforcing, among other laws, Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000-e et seq., which forbids covered employers from discriminating against persons on the basis of their sex, as well as other protected status. Thus, an employer may not limit employment opportunities because of sex unless it can show that sex is a bona fide occupational qualification ("BFOQ") reasonably necessary to the normal operation of an employer's particular business. 42 U.S.C.A. § 2000e-2(e)(1). The Supreme Court has interpreted the BFOQ exception narrowly. See International Union, UAW v. Johnson Controls, 499 U.S. 187, 201 (1991). Accordingly, the refusal to hire an individual based on stereotyped characterizations of the sexes will not warrant the application of the BFOQ exception. 29 C.F.R. § 1604.2(a)(1)(ii). Nor, generally speaking, will customer or client preferences for one gender over another excuse an employer's use of sex as an explicit criteria in employment decisions. 29 C.F.R. § 1604.2(a)(1)(iii).

Some courts have recognized that sex may be a BFOQ where the legitimate privacy interests of an employer's clients or customers might otherwise be compromised. Courts accepting a privacy-based rationale generally have done so only in cases where employers have argued that a sex-based criteria was necessary in order to protect the bodily privacy interests of patients or customers from members of the opposite sex. For example, in Healey v. Southwood Psychiatric Hosp., 78 F.3d 128 (3d Cir. 1996), the Court upheld, as a BFOQ, a psychiatric hospital's practice of considering the sex of child care specialists when making shift assignments where the hospital established that staffing all of its shifts with at least one member of each sex was necessary to protect the privacy of its patients and to carry out the hospital's basic mission of providing therapy to those patients through role modeling. Conversely, courts have refused to apply the BFOQ exception where the customer or client interest is based on preference or stereotypical assumptions, rather than legitimate concerns about bodily privacy. E.g., Olson v. Marriott Int'l, Inc., 75 F. Supp.2d 1052 (D. Ariz. 1999) (Holding that hotel spa could not establish that sex was a BFOQ for massage therapist position where it asserted that clients should be able to choose sex of their massage therapist because of alleged privacy concerns).

In order to establish a sex-based BFOQ, an employer must have a "basis in fact" for its belief that no members of one sex could perform the job in question. Dothard v. Rawlinson, 433 U.S. 321, 335 (1977).

Even if client or customer privacy concerns are implicated, courts have examined whether the employer could "reasonably arrange job responsibilities in a way to minimize a clash between the privacy interests of [its customers or clients] and the non-discriminatory alternatives of Title VII." Gunther v. Iowa State Men's Reformatory, 612 F.2d 1079, 1086 (8th Cir.), cert. denied, 446 U.S. 966 (1980). Thus, even privacy-based concerns will not normally justify a complete bar on the hiring of one sex for a particular position. E.g., Equal Employment Opportunity Comm'n v. HI 40 Corp., 953 F. Supp. 301 (W.D. Miss. 1996) (Rejecting employer's argument that being female was a BFOQ for counselor position at weight loss center because "the impact of employing male counselors on the privacy interests of female customers was minimal" and there was no showing that only women could take measurements of customers and provide weight loss counseling).

It appears from your letter that seeks to exclude males from all infant diaper changing positions, regardless of the sex of the infant. Although not explicitly stated in your letter, we have inferred that believes that using sex as a criterion for these positions is necessary to protect some privacy interest of the infants or to meet stated preferences of parents. We are not aware of any court decision which holds that sex may be a bona fide occupational qualification in those factual circumstances.

We hope this guidance is helpful to you. If you have further questions, you may contact me at 202-663-4679. Please keep in mind that this is intended as informal guidance only, and is not an official opinion of the Commission.

Sincerely,

Dianna Johnston
Assistant Legal Counsel


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