Title VII Prohibits Discrimination Against Men

​Discrimination against men is just as unlawful under Title VII of the Civil Rights Act of 1964 as discrimination against women. The Equal Employment Opportunity Commission (EEOC) emphasized this point on Sept. 28 when it filed a lawsuit against a restaurant that allegedly never hired more than one male bartender at each location for violating Title VII.

"It is just as illegal to deny a male employment because of his sex as it is a female. Employers must realize that no person, male or female, can be denied employment based on sex, except in the rare instances when gender is a bona fide occupational qualification," said Katharine Kores, district director of the EEOC's Memphis District Office, in a press release on the EEOC's lawsuit versus R Wings R Wild restaurant.

Lawsuit Against Restaurant

R Wings R Wild LLC, doing business as Buffalo Wild Wings, declined to hire David Golden and other male applicants as bartenders because of their sex, the complaint alleged.

On July 20, 2014, Golden saw an advertisement on Craigslist in which the restaurant chain's location in Little Rock, Ark., sought applicants for bartender positions. Golden noted in his resume that he had previous bartending experience and completed an application. But when a manager interviewed him, the manager told Golden that the employer wanted to hire a female bartender because there was already a male bartender at this location. The restaurant's policy allegedly was to have only one male bartender at a time at each of its locations.

Golden wasn't hired, and a woman was hired for the bartending position instead.

The EEOC alleged that the employer violated Title VII at its locations in Arkansas and Oklahoma. It failed to hire at least nine other male applicants who applied for bartending positions in the two states, and at least half the locations never employed a male bartender between Feb. 2, 2014, and April 15, 2015.

The EEOC is seeking a permanent injunction, back pay with prejudgment interest, and compensatory and punitive damages.

"The EEOC has successfully litigated claims of sex discrimination on behalf of males seeking sales representative positions in the cosmetics industry, males seeking restaurant server/bartender positions and males seeking positions in the weight-loss industry," said Tony Prather, an attorney with Barnes & Thornburg in Indianapolis.

BFOQ Defense

However, he noted, "In very limited situations, an employer could defend itself against a claim of sex discrimination by a male, arguing that gender is a bona fide occupational qualification (BFOQ) for a position." Race is never a BFOQ.

Hiring a male applicant as a locker room attendant for a men's locker room and hiring a female applicant as a locker room attendant for a women's locker room are examples of the application of the BFOQ defense, he said.

"We have several clients who have specific gender-based requirements for their position," said Joyce Chastain, SHRM-SCP, a regulatory compliance consultant with The Krizner Group in Tallahassee, Fla. "Some of those are set in state regulations," she said. For example, dressing room attendants in department stores may be gender-specific. Personal caregivers for disabled residents in group home settings also can be sex-based, she stated.

The BFOQ defense is narrowly applied, cautioned Michael Schmidt, an attorney with Cozen O'Connor in New York City. "It is important to distinguish between a customer's privacy interest where you may be able to justify a gender-based hiring practice and a broad, blanket customer preference or perception upon which a hiring practice is based—where you may not be able to lawfully discriminate," he said.

Even customer preference may be enough to show a BFOQ in limited circumstances. Hooters, for example, has "billed itself less as a restaurant and more as a fantasy for men," said Patti Perez, vice president of workplace strategy firm Emtrain in San Francisco. She has represented Hooters in the past and said part of its business model is to give straight men the fantasy of being served food by attractive women. "Although I've never verified this, it makes sense and would therefore put Hooters—and maybe this restaurant [Buffalo Wild Wings]—into a category more like a strip club or a gentlemen's club than a restaurant, and I suppose this is how you get to the BFOQ issue."

The EEOC dropped its investigation into Hooters for sex discrimination two decades ago, citing limited resources.

Unlawful Discrimination in Female-Dominated Professions

The risk for unlawful discrimination against men is greatest in female-dominated positions, like nursing or elementary school teaching, Perez noted.

"I thought we had evolved beyond all of the bias about men in one of the historically female-dominated positions: nursing," Chastain said. "But recently, a hiring manager at a nursing home shared with me that they don't consider male applicants for their nursing positions in their female resident units because their patients/residents don't want to be treated by male nurses."

[SHRM members-only toolkit: Managing Equal Employment Opportunity]

HR is another profession mainly represented by women, said Christine Walters, J.D., SHRM-SCP, owner of the HR consultancy FiveL Company in Westminster, Md. "How does that fact impact our perception—hidden bias—about the comparable ability of a man to administer the soft side of HR as well as the metrics and analytical side?" she asked. "Employers should remember to periodically monitor their applicant flow for jobs that are predominantly filled by men or predominantly by women and ensure there is no appearance of adverse impact with regard to applicants who are not of that predominant sex."

She said, "I am surprised to find when I ask a group of managers if not just males but if white males are legally protected under Title VII, how many reply, 'No.' "

"The EEOC has and will continue to aggressively address discrimination in the workplace irrespective of whether the discriminatory actions are directed toward males or females," Prather said.

Jay M. Wallace, an attorney with Bell Nunnally in Dallas who is representing R Wings R Wild LLC, said that the company "is confident that when all the information comes to light, the evidence will show clearly that the company did not engage in any discriminatory practices, has met and continues to meet its obligations under Title VII, and maintains a workplace that offers rich opportunities for people of all genders."

 

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