Sunday, December 18, 2011

Tempest in a flu shot: sex discrimination and religious preference

John Benitez, Jr. was employed as a nurse by the Dearborn Health Department.  Dearborn is reported to a Muslim population of 30%.   Benitez was instructed by his female supervisor who was also Muslim that he was not to treat female patients who were Islamic and who head scarves.  He was directed to transfer those patients to the female supervisor.

A doctor saw him sending a female who wanted a flu shot to his supervisor.  When asked why he was doing this, Benitez explained that those were his directions.  The doctor said that this was procedure was burdensome and that he should treat anyone who came into the clinic.  He complied with the directions but was subsequently fired.  According to the Complaint, he was told the clinic's conservative male clientele did not want a male treating female patients.  This view was adopted, and Benitez was terminated.

The case raises the issue of customer preference, based in part on religious beliefs, as a defense under Title VII of the Civil Rights Act of 1964.  Under the statute, an employer may have a defense to intentional discrimination where the decision is based on otherwise prohibited discrimination which is reasonably necessary to the normal operation of a business. This defense is known as the bona fide occupational qualification defense("BFOQ).  While customer preference is not a per se a BFOQ, courts have examined the defense in the context of privacy, especially in nursing home and corrections context.

The Sixth Circuit considered the issue in Everson v. Michigan Dep't of Corrections, 391 F. 3d 737(2002).
The court stated, with respect to the test to be applied, that particular circumstances of the individual employer must be examined, and that a court must not simply rely on generalizations about an industry or a group of employers.  Appraisals need not be based on objective, empirical evidence, and common sense and deference to experts in the field may be used to establish a BFOQ. (391 F. 3d at 1560.)

The EEOC addressed the issue in an informal opinion letter dealing with pre school child care and educational services.  The letter stated:   Even if client or customer privacy concerns are implicated, courts have examined whether the employer could "reasonably arrange job responsibilities in a way to minimize a clash between the privacy interests of [its customers or clients] and the non-discriminatory alternatives of Title VII." Gunther v. Iowa State Men's Reformatory, 612 F.2d 1079, 1086 (8th Cir.), cert. denied, 446 U.S. 966 (1980).

In this case, was it possible to arrange job responsibilities in a way consistent with the EEOC letter?  The clinic could have used a procedure where a female who was uncomfortable being treated by a male would be transferred to the female supervisor for treatment upon request.  Terminating Benitez, as alleged in the Complaint, based upon customer preference would not be saved by a BFOQ of needing only women to treat women.

In areas such as Dearborn, where there is the every day mixture of people with different religious beliefs, employers must be alert to situations where personnel decisions may involve customer preference based on religious beliefs or practices. Employers are going to be confronted with more sensitive issues. Decisions based on customer preference which are discriminatory must be considered carefully before any implementation with an examination of options to avoid discrimination.  Establishing a BFOQ is difficult.

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