Daniel K. Kinder and Sara A. Rapport, Editors
Little, Medeiros, Kinder, Bulman & Whitney, P.C.

Vol. 13, No. 7
August 2008

HIRING

No BFOQ certification for housekeeper positions at RIC

Under federal and state antidiscrimination laws, you cannot refuse to hire an applicant because of his sex unless you can show that sex is a bona fide occupational qualification (BFOQ). In Rhode Island, the Fair Employment Practices Act allows you to request that the Rhode Island Commission for Human Rights certify a BFOQ for a particular position. Rhode Island College (RIC) recently made such a request. It asked the commission to certify two housekeeper jobs at the college's recreation center. After a hearing, the request was denied ― at least for now. Read on to find out why.

Problem: How fast can you change?

The RIC recreation center serves students, employees, and the community, including the summer Special Olympics. The center has separate locker rooms for males and females, each with toilets and shower facilities. The rooms have an open design ― without walls, dividers, or curtains for privacy. Men, women, and children using the locker rooms are in "various stages of undress," as the commission delicately put it.

Housekeepers clean the locker rooms in two shifts, with two people on each shift. The night shift runs from 3:00 p.m. to 7:00 a.m. and is staffed by a man and a woman. The male housekeeper cleans the men's locker room, and the female housekeeper cleans the women's locker room. RIC likes the male/female staffing, and when a vacancy opened for one of the day-shift positions, it wanted to continue the practice and maintain a balanced male/female team.

Not so fast, said the union. The collective bargaining agreement doesn't allow the college to fill the position based on sex. So RIC went before the commission and made its case, explaining that housekeepers are needed to clean the locker rooms on a regular basis, about one and one-half hours each day.

In addition, sometimes a housekeeper had to respond to an emergency (i.e., when an unsanitary condition developed in the bathrooms). And as everyone agreed, users rushing off to the gym or the pool don't want to begin their recreation by stripping down in front of a housekeeper of the opposite sex. Finally, it would become very unpleasant, even downright nasty, if the locker rooms weren't cleaned at all during the day shift.

So could RIC require that its new housekeeping team be composed of a man and woman? The Rhode Island affiliate of the American Civil Liberties Union weighed in and said no. The union, on the other hand, sought to resolve the problem through negotiations.

Solution: Put up a screen

The commission denied the BFOQ certification for the housekeeper position because RIC was unable to prove the need for such a designation. An employer has to do hard work to raise the heavy bar against hiring based on sex. It cannot rely on stereotypes, and its very business essence must be at stake.

As an example, the Sixth U.S. Circuit Court of Appeals allowed a BFOQ for the "correctional officer" position at a women's prison in Michigan. In that case, an expert concluded that the state's interest in preventing abuse and ensuring privacy required female guards ― and only female guards ― overseeing female inmates.

As for RIC, the commission determined that the college hadn't tried hard enough to avoid sex-specific hiring of housekeepers. It cited a number of examples of the school's failure, including the following:

• It offered no evidence of the cost of screens or partitions that might protect the privacy of patrons for little additional cost.
• It had not explored the effect of various scheduling alternatives, such as cleaning at the beginning and end of the night shift (which currently had a male/female team) at 3:00 p.m. and 7:00 a.m. to reduce the need for daytime cleaning.
• And it didn't explain well enough (or with real evidence) why its rejection of limiting access to the locker rooms was based on anything more than an operational preference. Sure, it's annoying to clear the space to clean, but how many patrons use it on average, and at what hours are they in the facility? And how much time do housekeeping tasks in the locker rooms take?

Copyright 2008 M. Lee Smith Publishers LLC

RHODE ISLAND EMPLOYMENT LAW LETTER does not attempt to offer solutions to specific problems, but rather to provide information about current developments in Rhode Island and federal employment law. Inquiries about specific problems should be addressed to the labor or employment law attorney of your choice. Rhode Island does not certify lawyers as specialists in labor and employment law or other areas of concentration.