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Can you legally discriminate on the basis of gender?

August 8, 2013

Article courtesy of SBAM Approved Partner ASE

By Anthony Kaylin  

Maybe, but likely not—at least not in the matchmaking business.

Starting with the fictional Dolly (“Hello Dolly”) Levi up to today’s Patti Stanger (Millionaire Matchmaker) and Melissa Brown (It’s Just Lunch), many of America’s greatest matchmakers have been women. But male matchmakers have had similar successes.  Try Gary Kremen, founder of, or Gregory Scott Smith of

But It’s Just Lunch believed that only women knew best.  Lynda Twist, the former HR Director at It’s Just Lunch, complained to management that the company was refusing to hire men as dating directors and inside sales representatives. Not wanting to hear Ms. Twist’s message, the company fired her. She then filed a charge with the EEOC which resulted in a lawsuit by the EEOC.

And the case settled.  According to the terms of the consent decree settling the suit, which was approved by the U.S. District Court Friday, It’s Just Lunch will pay approximately $900,000 including a payment to Ms. Twist of $130,369.  The remaining settlement funds will be paid into an account that will be distributed to a class of qualified male job applicants who applied for dating director and inside sales representative jobs with It’s Just Lunch from 2007 to the present, but were not considered for employment.  The agreement also provides that It’s Just Lunch must implement a detailed applicant tracking system, provide training to managers, HR personnel and employees, and provide quarterly hiring reports to EEOC for three years.

A few years ago Lawry’s, the restaurant chain, got in trouble for only having women servers.  A busboy complained that he had been denied a higher-paying server position as a result of his gender. The EEOC investigation determined that Lawry had prohibited men from working as servers since 1938. In fact, Lawry’s was basing its policy on tradition. Female servers were dressing in costumes designed in the 1930s and 1940s. The EEOC determined that despite the policy’s roots in tradition and history, the practice of only hiring women for server positions adversely affected male employees and applicants on the basis of their sex.  It cost the company one million dollars to settle.

Back in the 1990s Hooters defended itself in an EEOC lawsuit for failing to hire men as servers. Hooters claimed that its women servers, not the food, were the restaurant’s product. With male servers Hooters would be just another diner with hamburgers. The trial court accepted Hooters’ argument.

So when is it legal to hire one gender over another?  Title VII of the 1964 Civil Rights Act prohibits discrimination based on gender unless it is based on a “Bona Fide Occupational Qualification” (“BFOQ”).   Some examples of BFOQs include mandatory retirement ages for bus drivers and airline pilots (for safety reasons); male (only) models for advertising for a manufacturer of men’s clothing, and teachers of only a certain religious denomination for a religious school.

Customer preferences are generally not BFOQs except in limited cases such as Hooters or Playboy Bunnies, where the product is in the service, not the food or refreshments.

An offshoot of BFOQ discrimination is called “steering.”  It tends to occur in certain industries like manufacturing or construction environment.  For example, a hiring supervisor, thinking she or he is doing a good deed for the female applicant for a material handler position, explains that the position is dirty and works in a tough environment (e.g., in cold or heat), and suggests that an assembler position may be more suitable. The applicant then takes the assembler position over the material handler position, even though it pays less.

The company may even have statistics that women turn over at a higher rate than men in the material handler position and are relatively stable in the assembler position. Doesn’t matter.  The key is whether or not the company allows the woman applicant the right to make her own choice without influencing her decision-making process. If it does not, it can be guilty of gender discrimination.

(Moreover, HR and the company needs to make sure that the position is not in an hostile environment as well.  Turnover may not be due to the job but the environment, leading to constructive discharge issues.)

The long and short of it is that HR has to monitor the environment, walk the floors and be vigilant when bad things happen or the environment is such that it could happen.  Proactive action saves the company time and money and reduces the risk of legal liability.

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