The United States Court of Appeals for the Ninth Circuit has decided a complex case brought by sheriff's deputies against the City and County of San Francisco ("the County"). In the case, titled Anderson v. City and County of San Francisco, the plaintiff deputies claimed that the County had unlawfully discriminated against them in establishing and implementing a policy that prohibited male deputies from supervising female inmates in single-sex housing units at jails. While much of the court's decision is devoted to analysis of concerns specific to correctional institutions, certain aspects of the decision apply to all sorts of employers, both public and private. In fact, the decision offers guidance to any employer who contemplates restricting certain positions to members of one sex, and the upshot is that any employer will face an uphill battle to defend such a restriction.

The plaintiff deputies alleged discrimination on the basis of sex, and the County responded with a "bona fide occupational qualification," or "BFOQ," defense. A BFOQ defense arises out of the language of Title VII, which provides that an employer may hire employees "on the basis of . . . religion, sex, or national origin in those certain instances where religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise." In other words, an employer can decide to hire only a member of a certain religion or sex if the person's membership in the religion or the person's sex is necessary to that person's holding the position and to the functioning of the employer. For example, a church may require that a pastor be a member of the church's particular denomination.

In the Anderson case, the County argued that its policy was justified by four interests: protecting female inmates from sexual misconduct, preventing manipulation of male deputies by female inmates, protecting inmates' privacy, and promoting rehabilitation. The court rejected these contentions and held that genuine disputes of fact existed regarding whether these asserted interests were enough to establish the BFOQ defense.

Specifically, the court held that an employer who seeks to "justify discrimination under the BFOQ defense must prove by a preponderance of the evidence: 1) that the job qualification justifying the discrimination is reasonably necessary to the essence of its business; and 2) that [sex] is a legitimate proxy for the qualification because (a) it has a substantial basis for believing that all or nearly all [men] lack the qualification, or . . . (b) it is impossible or highly impractical to insure by individual testing that its employees will have the necessary qualifications for the job." The court explained that an employer that seeks to justify sex discrimination by relying on the BFOQ defense "must show a high correlation between sex and ability to perform job functions." In addition, the court found that to prove a BFOQ defense, the employer would almost surely be required to show that "alternative approaches . . . are not viable."

In practice, this rule means that an employer might easily show that a particular job qualification is "reasonably necessary to the essence of its business," but is likely to have a difficult time proving that a person's sex "is a legitimate proxy for the qualification." For example, if a child care center sought to exclude men from certain positions out of concern that men would be more likely to abuse children, the child care center would likely be unable to show the required "high correlation" between sex and the ability to perform the job. Further, the child care center probably would be unable to show that an alternative approach would not suffice. Alternatives to sex discrimination could include instituting a policy to ensure that children are always in the view of more than one adult, providing additional training in detecting and stopping abuse, and carefully screening all incoming employees.

Accordingly, the court concluded that "[d]iscrimination on the basis of sex is almost always disfavored under Title VII." "Thus . . . our test for whether an employer is entitled to a BFOQ defense . . . is purposely difficult to satisfy." The takeaway for employers is that the BFOQ defense is a narrow one and, in the case of sex discrimination, may be extremely difficult to establish. The Anderson decision is available here.