5

Prompted by the list of injunction demands from a recent lawsuit against Uber, I'm curious whether or not it's legal in California, Texas and elsewhere to discriminate on a profession such as a barber by sex. What about a doctor? A nurse? A masseuse? An Uber driver? A real-estate agent? A cook? A general contractor?

If it's legal, we start up with personal discrimination — letting and abetting a natural person customer to specify and select a doctor/barber/driver/etc by gender. But, then, wouldn't supply and demand laws dictate the necessity for corporate discrimination at a certain point? Would that be legal? Where is the line drawn?

Specifically, would it be legal to have listings where in search of a professional in a given occupation, the end customer could explicitly specify their search preference by gender?

Improve this question
2
  • 2
    For what it's worth, my health insurance company (one of the giants, who undoubtedly have a large legal department) does allow members to search for doctors by gender.
    – Nate Eldredge
    Oct 12, 2015 at 0:00
  • Why did this question generate so many views so shortly? (At 1,1k now!) Has it been posted externally somewhere?
    – cnst
    Oct 13, 2015 at 2:50

1 Answer 1

Reset to default
6

It is not legal for an employer to discriminate on the basis of sex anywhere in the US (see http://www.eeoc.gov/laws/types/sex.cfm). Exemptions exist where the discrimination is for bona fide occupational qualifications and, irrelevantly, religious reasons.

It is completely legal for a consumer to discriminate on the basis of anything they want to. It is also legal for a business to assist the consumer in that discrimination.

Bona fide occupational qualifications generally only apply to instances in which the BFOQ is considered reasonably necessary to the normal operation of a particular business. Mere customer satisfaction, or lack thereof, is not enough to justify a BFOQ defence, as noted in the cases Diaz v. Pan Am. World Airways, Inc. and Wilson v. Southwest Airlines Co.. Therefore, customer preference for females does not make femininity a BFOQ for the occupation of flight attendant. However, there may be cases in which customer preference is a BFOQ—for example, femininity is reasonably necessary for Playboy Bunnies. Customer preference can "'be taken into account only when it is based on the company's inability to perform the primary function or service it offers,' that is, where sex or sex appeal is itself the dominant service provided."

None of the occupations you mention would, on the face of it, meet the requirements to be BFOQ.

Allowing their customers to express a preference for a specific gender may impact on the capacity for the business to deliver on that preference but it would not generally allow a BFOQ defence if this impacted their hiring policies. A possible exception is if the business catered to that preference exclusively, for example, an all female gym with all female staff but I am not aware that this has ever been tested and if a male personal trainer wanted to take them on he may very well win.

As an aside, there is no BFOQ defence for racial discrimination except for artistic works where the first amendment rights overrule the anti-discrimination laws.

Improve this answer
19
  • 1
    I guess your first sentence is not really true in all cases, as there are exceptions. What about a fashion model for women's underwear? Or what about casting a role for Napoleon in a theatre or movie? There you are allowed to discriminate even based on race and facial features. What about hiring a new priest or other staff for a religious institution? I'm pretty sure that you can base the selection on religion in that case.
    – vsz
    Oct 12, 2015 at 4:09
  • 1
    @cnst: you link to something that cites the Federal Fair Housing laws (I assume the Fair Housing Act, Title VIII of the Civil Rights Act of 1968), which regulate housing ads. So, there may be other differences, but it seems likely straight away that this case is different because Fair Housing laws have nothing to say about the selection of or advertising to barbers, doctors, etc. They relate to the selection of and advertising to tenants.
    – Steve Jessop
    Oct 12, 2015 at 9:40
  • 1
    @nomenagentis The difference between Hooters and the airlines is that Hooters is specifically selling service by women fitting a certain image. The airlines were selling transportation, and using the physical image of their crew as a means of attracting business. With Hooters, the waitresses are a major part of the product.
    – phoog
    Oct 12, 2015 at 23:37
  • 1
    @phoog that argument was attempted by the airlines. It was not successful. See the review article by Manley. Read the Pan Am and Southwest opinions. The manner in which a company decides to deliver its product isn't part of the product for BFOQ purposes.
    – user248
    Oct 13, 2015 at 0:28
  • 1
    @phoog From Southwest: "That Southwest's female personnel may perform their mechanical duties "with love" does not change the result. "Love" is the manner of job performance, not the job performed." Most believe that courts would see the physical appearance of the Hooters waitresses as a component of the "manner" of the job performance, and not the job performed.
    – user248
    Oct 13, 2015 at 0:58

You must log in to answer this question.

Not the answer you're looking for? Browse other questions tagged .