When is it legal to discriminate by sex/gender in job postings?
September 9, 2015 7:41 PM   Subscribe

A mailing list I'm in has received a job posting calling for a male journalist. The justification for the gender is that it's a tv channel for financial news, and the reporters will be reading stuff all day, so they want to have a man and a woman alternate reading stories, and they have already hired the woman.

I reckon that, if the ad didn't specify a gender and they were going to just hire a male, it would be disrespectful to women who'd apply for nothing, and also impossible to police ("look, we have perfect 50/50 gender balance for this position"). However, independently of legality and enforceability, it seemed culturally ok. Many on this mailing list speak up at sexism, but in this occasion, nobody said anything.

Besides the super-obvious casting call ads where it's ok to specify any combination of gender/race/age, what other exceptions exist to non-discrimination laws in the workplace? Medical personnel for sensitive topics/populations? Police or para-police people like airport screeners? Are religious "jobs" like priest or nun considered jobs? Any others?

For the record, I'm Spanish-Australian, and this was a Spanish mailing list, but this is more of a question about how do non-discrimination laws and social norms work wherever you are: the US, France, China...

I'm curious not only about whether the above was legal where you live, regardless of other considerations, but also what exceptions are considered common-sense or culturally appropriate, regardless of legality.
posted by kandinski to Law & Government (11 answers total) 1 user marked this as a favorite
Discriminatory hiring is generally permitted when there is a valid reason for it. You're not obligated to hire men to counsel victims of domestic violence or rape if you're trying to create a safe space for women who are currently terrified of men. You can hire people from a specific ethnic or cultural background to provide liaison services to other people of that same ethnic or cultural background.

Casting movies and TV shows is generally accepted to have gender, race, age, etc, as bona fide occupational qualifications. That's a bit of a harder sell for a news program where people aren't characters, but I imagine it's still sufficient that you are trying to create a specific cast dynamic.
posted by jacquilynne at 7:57 PM on September 9, 2015 [1 favorite]

In the US, "viewer preference" is used to support sex discrimination in these kinds of hiring decisions. While it is not expressly allowed by law, there is an allowance for "Bona Fide Occupational Qualifications" (classic example is a women's bathroom attendant), and TV stations/news programs buttress this defense with results from viewer surveys that express preference for certain anchors and personnel composition. It's not always successful.
posted by rhizome at 7:59 PM on September 9, 2015

In Oz there are 'Identified Positions' (I think that's the phrase) where people from certain backgrounds are encouraged to apply, or it is restricted to those backgrounds, usually for cultural reasons (I see it most in ATSI work).
posted by geek anachronism at 8:05 PM on September 9, 2015

I'm in Australia and an institution where I worked advertised an (academic) position only for women applicants. The justification was that the institution had never previously hired a woman into that position, and was trying to change its gender balance. Their legal counsel okayed it, but a male potential applicant challenged them in court and won, so it turned out you can't do it in circumstances like that.
posted by lollusc at 8:59 PM on September 9, 2015

If the employer was found to discriminate after a federal investigation, particularly if it's decades, sanctions would include developing an entire formulation for work environment, recruiting qualified candidates with an emphasis on reaching potential demographic applicants that were excluded from full consideration in past practices. Anyone else can apply but qualified/best-qualified head for interviewing/next evaluation.Evaluate on qualifications for essential functions. If your interview pool does not match the demographics of qualified candidates in your search area, you may have some 'splaining to do post investigation.

Religious groups have plenty of exceptions - but some are live-in jobs with vows of celibacy and poverty when it comes to gender - so the devout faithful of the religious end up being more qualified.
posted by childofTethys at 10:38 PM on September 9, 2015

As others have said, in the US the key phrase with regard to discrimination against a protected category (religion, sex, national origin, 40+ age, veteran status, etc., but notably not sexual orientation, at least not at the Federal level) is "Bona Fide Occupational Qualification", or BFOQ for short.

It is worth noting that there's not really a list of BFOQs nor would it be possible to compile one that would cover every possible case. Instead, the existence of a BFOQ is a defense that an employer can raise in response to a claim of discrimination. As a result the specifics -- which are probably what you care about, as an employer or employee -- are largely products of caselaw, not legislation.

There are some classic examples where the BFOQ defense is really strong, and then other examples where someone attempted to assert that a BFOQ existed and a court absolutely didn't go for it, and then there's sort of a constant murky area between the two with different theories and tests that you have to apply on a case by case basis. And at various times the law on the ground can vary from one jurisdiction to another, even just in regard to Federal employment laws (not counting state laws, which obviously vary).

For instance, in this 2014 9th Circuit case, the court (depending on whose analysis you read) substantially raised the bar for employers' sex-based hiring policies, in a way that (again, this is all open to some interpretation) might require most employers with men- or women-only policies to rethink them, at least enough to clearly demonstrate that they're based on hard data and that no alternatives to a discriminatory policy, e.g. individual testing, exist.

I mention that not only because it's interesting in itself, but because it shows the moving-target aspect of what constitutes a defensible BFOQ. Although the list of protected classes changes very slowly (at least at the Federal level) because Congress, the criteria for a legally-acceptable discriminatory policy change often enough that a lot of HR people find steady work keeping employers' policies up to date.
posted by Kadin2048 at 11:12 PM on September 9, 2015 [5 favorites]

Lollusc's Horrible Warning Employer could have a better resolution if they recruited qualified applicants from the Female [insert profession] Professional Association.
Acting is weird. Jane Lynch's memoir has a couple of examples of how she and her agent put in successful bids for her to read for roles that were cast for men, meaning just because they want a male doesn't mean that will happen.
posted by childofTethys at 4:16 AM on September 10, 2015

If a job can be done by a man or a woman then it is discriminatory to not allow both sexes to apply. Since being a male anchor on a news show is something that only a man can do, the job posting was not discriminatory.
posted by myselfasme at 6:19 AM on September 10, 2015

Thanks everyone, I'm giving this one for answered. And thank you childofThetys, I'll read Jane Lynch's memoir too!
posted by kandinski at 6:32 AM on September 10, 2015

I call BS on this one. To expand on myselfasme's answer.....Since being a male ENGINEER is something that only a man can do, the job posting was not discriminatory. Since being a male DOCTOR is something that only a man can do, the job posting was not discriminatory. Since being a male [INSERT ANYTHING] is something that only a man can do, the job posting was not discriminatory.

I understand they are looking for "balance" but I don't think the only way to achieve that is by gender. Re:Jane Lynch mentioned previously. Granted I hate when organizations advertise a job because they have to, even when they already know who they are hiring or whatever, so I wouldn't want to waste my time applying if they are never going to consider me. But I don't think someone should be able to discriminate in their hiring decision in this case for "balance".
posted by sillysally at 7:03 AM on September 10, 2015 [1 favorite]

SillySally, I see your point. However, a minor they are not looking for balance, but for contrast.

Financial stories read over tv are basically radio with a talking head, and what this company wants is to have a clear marker or when one story has finished, the next one has started. That's why they want alternating genders of announcers. I guess that also, as the dress convention for males and females is different (men have to wear dark suits, women's power suits can be colourful) this also provides visual contrast, not only for the voices.

In that sense, it could be argued that, for this type of program, they have a "male anchor" and "female anchor" slots, and each of those jobs can only be done by a person of the appropriate gender. The counterargument would be to ask whether it's legitimate to assert that having a male/female contrast (not balance) is a requirement for the programming, and the Jane Lynch anecdote is very revealing in this regard.
posted by kandinski at 6:24 PM on September 10, 2015

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