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When Differences Matter: Employers’ Rights and Risks
 

By Lin Grensing-Pophal  4/17/2013
 

A university chooses to hire a native English-speaking male professor, instead of a Taiwanese female professor whose command of the English language is limited.

An upscale women’s-clothing retailer makes hiring choices, in part, on how “good-looking” the applicants are.

A mom and pop restaurant will not hire anyone who might be seen by patrons if he or she has visible tattoos.

A hospital’s policies indicate that patient preferences will be taken into consideration when assigning nursing or other clinical staff—Caucasian patients, for instance, may elect not to be treated by Asian staff members.

These are all examples of discrimination that organizations regularly exhibit, and, perhaps surprisingly, in some cases they are perfectly appropriate.

There are two broad areas where organizations and their hiring managers may struggle when it comes to finding the right balance between company preference and legal requirements: brand and cultural fit.

The Role of Brand

Hooters restaurant chain provides a well-known example of a brand issue. The restaurant has been defending its core concept of hiring buxom waitresses to “titillate and entice” male customers since 1997, when it successfully fended off three class actions challenging its practices, based on a ruling that said “being female is reasonably necessary" to the performance of the Hooters Girl’s job duties. While Hooters may be one of the most widely known companies with such hiring practices, it is certainly not alone. Retailers and hospitality companies are understandably concerned about the image they present to their customers: think about Abercrombie & Fitch clothing stores’ hiring decisions—some legal, some not.

Cultural Fit

A recent study by Northwestern University, “Hiring as Cultural Matching: The Case of Elite Professional Service Firms,” found that the driver in many hiring decisions is less about capability than about conformity—respondents indicated they are more likely to hire someone they would feel comfortable with.

In addition, the notion of “hiring for cultural fit” has become widely accepted and serves as the basis for hiring decisions in many settings. The trouble with that, of course, is if our workforce is composed of primarily white males between the ages of 30 and 40, hiring people “like us” could potentially get us into hot water when it comes to various legal requirements.

The Law

The question of whether it is allowable to discriminate comes down to statute, explained Spencer Silverglate, a civil litigation attorney at Clarke Silverglate P.A. in Miami. “The general answer is that it is permissible to discriminate unless there is a specific statute that prohibits it,” he said. “You can terminate or not hire an individual for any reason, as long as it’s not a reason that’s prohibited by statute, such as their gender, their age—if they’re over 40—their religion, national origin and race, and things like that.”

But, he added, “Where employers run into trouble is if the employee can somehow link whatever the discrimination is based on to something that is protected under Title VII” or a state or local statute. “There are a lot of things which generally are not illegal, but creative employees and, in particular, creative plaintiffs’ lawyers will try to figure out a way to shoehorn it into something that is illegal.”

The key for employers: demonstrating that any area of discrimination is tied to a bona fide occupational qualification (BFOQ).

BFOQ

“BFOQs can trump affirmative action when an employer can show that a specific characteristic is reasonably necessary for its normal business operations,” said Shawn S. Talley, PHR, director of human resources at NovaSom Inc. in Glen Burnie, Md. This is true in instances such as female waitresses and performers at gentlemen’s clubs, male models for men’s clothing lines, and same-sex domestic violence counselors.

Gender-specific employee requirements may be upheld in certain situations, agrees Laura T. Kerekes, SPHR, chief knowledge officer at Think HR in Atlanta. Along with Talley’s examples, ThinkHR’s clients find that these issues arise with personal-service attendants in health care and related health care professions. In some cases patients or their families request same-sex nurses and nursing attendants to care for them or their loved ones.

“While the courts have consistently ruled that employers in personal-service firms cannot discriminate based on client preference relating to race or national origin, this issue of gender preference has been open to more interpretation because of the BFOQ exception,” Kerekes said. So health care employers can honor specific requests for a same-sex caregiver without violating the laws against discrimination—but only if the care to be given involves issues of intimate personal privacy, such as a patient’s preference not to have an opposite-sex caregiver assisting him with toileting or bathing.

Tips for HR Professionals

Although the issues can be complex, in reality, said Silverglate, employers and their HR advisors generally have a pretty good sense of what is right and what is not—from both a legal and an ethical perspective. BFOQ-related decisions generally come back to a consideration of the business the company is in, its mission and the customers the organization serves, concurs David Goldstein, a shareholder at Littler Mendelson in Minneapolis.

“Like a lot of issues in the law, people tend to be reasonable and practical even when the law is sometimes confusing and difficult,” said Goldstein. “I think employers in all kinds of contexts deal with these issues all of the time and try to deal with them in reasonable ways. Frankly, their decisions rarely get challenged because a lot of this is just common sense.”

Kerekes recommends that HR professionals carefully review any jobs that may be in question to determine if a BFOQ may be necessary. If so, “Ensure that your documentation supports the position if challenged.”

Finally, “When in doubt regarding the BFOQ exception in hiring or promotion practices, consult with a labor attorney to avoid a potential discrimination claim.”

 Lin Grensing-Pophal, SPHR, is a Wisconsin-based business journalist with HR consulting experience in employee communication, training and management issues.

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