There are a few situations of discrimination where an employer can raise a successful defense to a claim of employment discrimination, including sex discrimination claims. In a recent case filed by the EEOC against a “gentlemen’s club,” this issue was brought to light.
Understanding the Bona Fide Occupational Qualification defense
In employment discrimination law there is a defense that employers may raise known as the BFOQ defense, which stands for Bona Fide Occupational Qualification. Basically, employers may claim that a protected characteristic may be the basis for discrimination when that characteristic “is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise.”
For example, retirement ages for bus drivers and airline pilots can be BFOQs for safety reasons. Hiring only men as male models for men’s clothing is another example. Religious schools are also allowed to require their faculty to be members of a specific religious denomination. Still, the BFOQ must be reasonably necessary to the normal operation of the particular business involved. Customer satisfaction alone cannot be a justification for a BFOQ defense.
EEOC case against Sammy's Gentlemen's Club
Sammy’s is a gentlemen’s club in Fort Walton Beach, Florida. In 2015, James Sharp answered an ad for a bartender position at the club. When he arrived in person to submit his application he was immediately turned away because he was a man. The company only hired female bartenders. In fact, the club employed 17 females and no males in their bartender positions at the Fort Walton Beach club. The EEOC filed a lawsuit against the club for violating federal gender discrimination laws.
They also brought a claim for its failure to maintain the employment records that are required by federal law. Specifically, the company failed to maintain copies of their employment applications as required by Title VII.
The BFOQ defense will likely not apply in this case
As this is a case involving a gentlemen’s club, it may seem reasonable that a BFOQ defense would be applicable. Certainly, it would be expected that only female employees would be hired as performers in the club. However, it will likely be difficult to establish that the position of bartender could only be filled by females, as well. The EEOC Regional Attorney, Marsha L. Rucker, had this to say about the claims:
Although sex-based discrimination against women may be more common than against men, 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. When hiring decisions are made based on an applicant's sex, the EEOC will act to enforce the federal laws that were enacted to prohibit such discrimination.
The EEOC’s efforts to reach a pre-litigation settlement with the club owners through its conciliation process were unsuccessful. The EEOC is seeking monetary damages,
including back pay, compensatory and punitive damages, and injunctive relief meant to prevent further discrimination.
If you feel you have been the victim of discrimination or retaliation in the workplace, or if you have any other questions regarding your employment rights, please contact the experienced employment law attorneys at Michel Allen & Sinor. You can contact us eitheronline or by calling us at (205) 265-1880. We are here to serve you!