Is there a defense to sex discrimination in hiring practices?

As we have discussed previously, federal civil rights law forbids most employers from discriminating against employees on the basis of sex, either in the workplace or in hiring or promotion decisions. As with most legal subjects, however, there are some limited defenses that can be raised by those accused of engaging in discrimination.

The usual defense to a claim of sex discrimination is that the employer did not, in fact, discriminate on the basis of gender as contended by the plaintiff. However there may also be what is called an affirmative defense to such charges. An affirmative defense is one in which the defendant does not deny doing the act which is alleged, but instead gives a reason that he or she should not be held legally responsible for such act. Under the federal civil rights law, USC 2000e-2(e) lays out one such affirmative defense to a charge of sex discrimination in hiring.

Normally, it is illegal for an employer to make a person's sex a prerequisite for being hired to a position. That is, in most cases an employer cannot say they are looking specifically for a male or a female to do a particular job. This is generally true of other classes such as religion and national origin as well. However, USC 2000e-2(e) specifies that it is not unlawful for a business to discriminate in this way if, in fact, the classification is a bona fide occupational qualification. This means that the qualification is reasonably necessary for the normal operation of the business. So, it is a defense to a claim of sex discrimination in hiring if the job can only be reasonably done by one gender. One hypothetical example might be a business in which actually giving birth was a requirement for the operation of the business. In such a case, it might be legal to look for and hire only females for that particular position. Of course, such a business may well run afoul of other laws, but that is beyond the scope of our discussion.

Now, in practice, there are likely very few occupations that would meet such a requirement and, indeed, the EEOC states that they read such bona fide occupational qualifications very narrowly. However, it is important to understand that no laws, including those against discrimination, are absolute. If you have questions about sex discrimination or sexual harassment in the workplace, you may wish to consider speaking with an experienced Oklahoma employment lawyer.