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 Â§ 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.