Friday, February 20, 2004

Can male nurses be excluded from the obstetrical department?

The case of Slivka v. Camden-Clark Memorial Hosp., No. 31404 (February 19, 2004) involves a clash between discrimination laws and privacy interests. The plaintiff is a male nurse who applied for a position as a staff RN in the obstetrical department of Camden-Clark Hospital in Parkersburg. He was denied employment in that particular department pursuant to a hospital policy of hiring only female nurses to work there. The reason for the policy was privacy concerns of the hospital's patients and their families. The hospital advanced the affirmative defense that being female was a bona fide occupational qualification (BFOQ) for the position of OB nurse, and the circuit court granted summary judgment in the hosptial's favor.

There is precedent in this state for allowing a BFOQ defense in sex discrimination cases where privacy concerns are raised. In the syllabus of St. John's Home for Children v. West Virginia Human Rights Commission, 180 W.Va. 137, 375 S.E.2d 769 (1988), the State Supreme Court held that being male was a BFOQ for the position of child care worker at a residential facility for violently aggressive, emotionally disturbed adolescent males. This conclusion was reached after finding: (1) the existence of a high risk of sexual assault and serious physical injury for female workers based on past experience at the facility, and (2) the likelihood that residents would be embarrassed by a member of the opposite sex fulfilling the necessary supervisory duties of observing the boys â??in various stages of undress, showering, or attending to their bodily functions." Id. at 139, 375 S.E.2d at 771. The rarely-invoked BFOQ defense is a standard part of nearly all civil rights statutes that prohibit sex discrimination.

The opinion cites several other cases outside of West Virginia in which hospitals excluding male nurses from obstetrical departments were found not to have discriminated unlawfully. However, the Court found that the record on appeal contained inadequate evidence to decide the present case. "Without knowing the magnitude of the resistance to male nurses being part of the obstetrical staff, it is difficult to fathom how Camden-Clark could persuasively establish that the essence of its business of patient care would be undermined if it hired male nurses in the obstetrics department." The Court wanted more evidence from patients, and it reversed the judgment and remanded the case for further development.

The Court did offer the following new syllabus point for guidance in future BFOQ cases that involve privacy interests:

4. Where an employer asserts that privacy interests justify gender being a bona fide occupational qualification under West Virginia Code § 5-11-9 (1998), in order to prevail an employer must prove: (1) how the essence or central mission of the business would be undermined by hiring members of both sexes; (2) the factual basis for the employer's belief that all or substantially all members of one gender could not perform the essential duties of the job in question without intruding on legitimate privacy concerns of its patrons; and (3) why alternatives to the gender-excluding policy would be impossible or impractical to achieve.

This case raises a complex issue. Good points can be made on both sides. On one hand, you have a patient base that is exclusively female, and contact with these patients in a state of undress is absolutely unavoidable. Even in this modern age, we all unquestioningly obey the the bathroom signage that keeps males and females in separate areas. Somehow, we expect women to "turn off" their innate privacy concerns when they are having a baby. On the other hand, there are plenty of medical doctors practicing in the OB/GYN arena who are male (I would guess at least half are male, but I'm not positive of that). If a woman has chosen a male doctor, how can she refuse a male nurse? I'm sure the women out there reading this will have something to say on this issue. It will be interesting to see what happens with this case on remand.


Anonymous said...

There is a difference from a woman choosing a male doctor and having a stranger be involved in such an intimate situation. While the male nurse is amply qualified to handle the job, a woman feels humiliated having a strange man in such an undignified situation.

Woman who have a history of sexual assault would be traumatized by uwanted examinations of such an intimate nature from a man she doesn't know.

It's not about the nurse, it's about the patient. Feeling humiliated shouldn't be part of the medical setting but that's another story.

To do no harm. When you think that one in four women are sexually assaulted, they need to be protected during the most vulnerabe of times. Not everyone feels this way, so it might be important to get patient input into their feelings before any hospitalization. Also victims of abuse should have a mandate for same gender care to feel safe. these women would rather die than be subjected to humiliation.

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