Is It Discriminatory for a Hospital to Require the Same-Sex Treatment of Patients?

According to the EEOC, a Missouri hospital discriminated against its male nurses by preferring to have female nurses treat female patients. But, is this really unlawful sex discrimination?

A "bona fide occupational qualification" defense permits discrimination based on sex, age, religion, or national origin (but not race) where the protected class is reasonably necessary to the normal operation of that particular business or enterprise. To qualify as a BFOQ, a job qualification must relate to the essence, or to the central mission of the employer's business. One example of a BFOQ is a safety-based mandatory retirement age for airline pilots.

Is the sex of the person providing medical treatment another example of a BFOQ? Or, is this the type of sex-based stereotype that Title VII is supposed to eradicate? Or, does it depend on the type of treatment being provided? Readers, what do you think?

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.