Reverse discrimination? Male prison guards performing strip searches on female inmates is an issue just asking for a lawsuit, right? The Washington Department of Corrections (DOC) needed a strong response to the lack of female correctional officers, and to a growing number of lawsuits involving the abuse and harassment of female inmates by their male prison guards. Complaints ranging from privacy breaches to sexual abuse were not uncommon. Authorities assigned the primary cause to the severe deficiency of female correctional officers in women’s prisons. The result was that male officers were responsible for sensitive duties, including supervising showers and performing pat-downs and other potentially delicate duties.

In response to this problem, officials designated 110 corrections positions as female-only, only to be slapped with a lawsuit from the Teamsters Union, claiming discrimination against male corrections officers. The Teamsters claimed that creating positions specifically for female officers was a violation of Title VII of the Civil Rights Act, in that males were denied jobs purely based on gender.

Reverse discrimination? The 9th Circuit Court found that the deliberation behind the decision to create female positions was sound. Because the DOC had undergone extensive study, including consultation with other states, expert soundings, case law reviews, and Human Rights Commission reviews, the decision to make the gender-specific positions was ruled not discriminatory, as gender was, indeed, a bona-fide occupational qualification (BFOQ) for the positions created.

Bona-Fide Occupational Qualification in Federal Law

Clearly, gender cannot be a disqualifier for hiring, promotion, or advancement in the majority of cases. On the other hand, a clear exception to Title VII regulations exists when sex is essential to a particular job. Hence, the BFOQ stipulations: They are narrowly applied, but deemed necessary in cases such as the corrections department scenario.

Employers need note that BFOQ is not an easy way out of hiring women for jobs that may traditionally be considered “men’s work.” Stereotypes, assumptions, or simple preferences are not acceptable arguments to use in denying employment based on gender.

Reverse Discrimination and Affirmative Action Programs

Many companies may have affirmative action goals designed to encourage a diverse workforce.  These may be used to strive for parity, but actual quota systems are unlawful unless specifically court-ordered to rectify discriminatory practices.

It is noteworthy, however, that the Supreme Court has found that merit-based evaluations may, in fact, reflect evaluator bias. In an affirmative action plan that gave promotional preference to a woman who had scored marginally lower than her male counterpart, the court found that since the interviewers were all male, and one had a history of sexually degrading speech, the promotion was proper.

In truth, although there are detractors who believe reverse discrimination is a serious problem in our country, fewer than 2% of discrimination cases pending before the Equal Employment Opportunities Commission might be categorized as such. That is because affirmative action plans are designed to assist individuals who already have germane qualifications. [Read more…]