Recently, the U.S. Equal Employment Opportunity Commission (“EEOC”) affirmed that job applicants and not just employees are entitled to protection from discrimination. In a release, the EEOC announced that Walmart agreed to pay $11.7 million in back wages and compensatory damages, up to $250,000 in administrative fees and also agreed to furnish women jobs to settle a sex discrimination lawsuit filed by the EEOC. In its lawsuit, the EEOC alleged that from 1998 through February 2005, Walmart’s London, Kentucky Distribution Center regularly hired male applicants for its entry-level order filing warehouse positions and denied the same jobs to female applicants who were equally or better qualified. According to the EEOC, Walmart officials told women applicants that these positions were not suitable for women and that they hired mainly 18 to 25-year old males for these positions.

Pursuant to the consent decree settling the lawsuit, Walmart is required to provide order filling positions as they become available to eligible and interested female class members, fill the first 50 positions with female class members, and, for the next 50 positions, offer female class members every other job. Thereafter, Walmart must offer every third position to female class members. Walmart has also agreed not to discriminate in its hiring practices, not to retaliate against applicants or employees who exercise their rights, post a notice of nondiscrimination and use validated interview questions for the order filling position.

Generally, unless there is a bona fide occupational qualification, the law forbids discrimination when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, and any other term or condition of employment. The EEOC narrowly construes the bona fide occupational qualification exception as to sex and finds that the labels “men’s jobs” and “women’s jobs” tend to deny employment opportunities unnecessarily to one sex or the other. As a result, the EEOC will find that the following situations do not warrant the application of the bona fide occupational qualification exception: (i) the refusal to hire a woman because of her sex based on assumptions of the comparative employment characteristics of women in general. For example, the assumption that the turnover rate among women is higher than among men. (ii) The refusal to hire an individual based on stereotyped characterizations of the sexes. Such stereotypes include, for example, that men are less capable of assembling intricate equipment or that women are less capable of aggressive salesmanship. The principle of nondiscrimination requires that individuals be considered on the basis of individual capabilities and not on the basis of any characteristics generally attributed to the group.

The suit against Walmart should be a reminder that all employers need to review their job duties and job descriptions to determine the proper requirements for each job. More importantly, all employers must understand that the “bona fide occupational exception” is a very narrowly interpreted exception that places the burden on the employer to establish the validity of the exception.