“I just didn’t see women working in the warehouse…”

By Fiona Ong - Shawe Rosental LLP

March 31, 2023

Many moons ago, when the ink was barely dry on my law school degree, I assisted a company with a compliance review by the Office of Federal Contract Compliance Programs. (In case you’re not familiar with the OFCCP, they enforce the affirmative action requirements for companies with federal contract and subcontracts). The company had engaged in some conversations with the OFCCP before they decided to call counsel (NEVER a good idea in a government investigation). And one of the warehouse managers made *that* comment to the OFCCP investigator. (Yikes!)

By the way, the manager also told the investigator, “I called a woman once about a job in the warehouse, but I didn’t realize she was a woman when I called her. She had some name like Robin.” (Double yikes!) By the time my firm and I got involved, the only question was how big the settlement check was going to be for the female warehouse applicants…

One might think that, in the decades since, employers have become a little more aware about their non-discrimination obligations. But it seems that these old stereotypes of women’s v. men’s work still persist, as evidenced by a recent announcement from the Equal Employment Opportunity Commission.

The EEOC sued a staffing company on behalf of 48 female workers for refusing to hire them for demolition and laborer positions or to assign those workers to such positions as well as certain duties because of their sex. Apparently the company didn’t respond to the lawsuit (and just to be clear, not calling your attorney at all is worse than not calling your attorney at the beginning of a governmental investigation), and the federal court awarded more than $2.6 MILLION to the workers!

There are many jobs and industries in which men have typically predominated. But as the Philadelphia District Director Jamie Williamson stated in the announcement, “Women workers in construction, skilled trades and other so-called ‘non-traditional’ occupations deserve every opportunity to earn a living and show their value on the jobsite.”

In other words, don’t make assumptions about whether someone can do a job – particularly one that is traditionally performed by one sex – based on their sex. It is important to focus on whether the individual, regardless of their sex, can perform the role. And of course, employers may hire the best qualified applicant for the role – but be sure that the qualifications are truly relevant to and necessary for the role. For example, if the role requires lifting 50 pounds but not more than that, and a female applicant can meet that requirement, it would not be appropriate to choose to hire a male simply because he can lift more than the female.

And one additional caveat – while the EEOC’s announcement warns against “indulg[ing] discriminatory customer preferences,” which is generally the rule, there are rare but real occasions in which sex is a bona fide occupational requirement (BFOQ) based on client/business needs. The EEOC has recognized three general categories in which sex may be a BFOQ:

•  Same sex role models to meet the psychological needs of clients of that sex. The “clients” are usually persons requiring some type of mental or social training or rehabilitation.
•  “Contact” positions in institutional settings, like prisons, hospitals, mental health facilities, and homes for the aged or infirm, where the employee’s duties involve physical contact with or visual observation of the client (inmate) by the employee and a potential invasion of the client/inmate’s privacy.
•  “Contact” positions in sexually-segregated settings, like a women’s dressing room, where, for privacy reasons, paying customers or clients would object to having a member of the opposite sex provide services involving physical contact or visual observation.

So a couple of lessons here. Don’t assume that women can’t do a job that has traditionally been performed by men. Don’t rely on customer preferences to assign work based on sex, unless there is a legitimate BFOQ. And, please, call your attorney at the beginning of a government investigation or lawsuit!

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