In July, I posted about the perils of gender based hiring. I pointed out that a company can “discriminate” based on protected characteristics (except race), when that characteristic is what is called a “Bona Fide Occupational Qualification” (“BFOQ”). To be a BFOQ, being a member of that group is essential to the job. Then, in November, I posted again about a home health care company again running afoul of gender based hiring.
And now, more news on this front. The Equal Employment Opportunity Commission (“EEOC”) has sued Lee’s Food Company (“LFC”) alleging that it violated federal law when it failed to hire a female candidate for a courtesy van driver position. Specifically, the complaint alleges that the store manager told the applicant that he would not hire a female for the courtesy van driver job out of concern that the job would not be safe for a female driver. The applicant otherwise met the qualifications for the position, but a few days later LFC hired a male candidate for the position.
Here, so far, there is no claim that LFC’s hiring decision was based on a BFOQ, rather this seems to be more of a case of paternalistic discrimination. Employers, even if acting out of so called benevolent concern, must be careful not to run afoul of Title VII and local hiring laws. If a candidate meets the stated, minimum qualifications, she should be considered for the position.
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Dori K. Stibolt is a senior associate with the law firm of Fox Rothschild LLP. Dori defends and counsels management in labor and employment litigation matters pertaining to wage and overtime claims, discrimination, harassment, retaliation, leave/restraint, and whistle-blower claims. You can contact Dori at 561-804-4417 or dstibolt@foxrothschild.com.