The Employment Law Center, PLLC
Parkersburg, West Virginia
Attorney for the Appellant
Kevin A. Nelson
Constance H. Weber
Kay Casto & Chaney, LLC
Charleston, West Virginia
Attorneys for the Appellees
Patricia H. Stiller
Molly A. Superfesky
Law Office of Stiller & Mooney, PLLC
Morgantown, West Virginia
Attorneys for Amicus Curiae,
The West Virginia Employment Lawyers Association
Darrell V. McGraw, Jr.
Paul R. Sheridan
Deputy Attorney General
Jonathan L. Matthews
Assistant Attorney General
Charleston, West Virginia
Attorneys for Amicus Curiae,
The West Virginia Human Rights Commission
JUSTICE ALBRIGHT delivered the opinion of the Court.
1. A circuit court's entry of summary judgment is reviewed de novo. Syl.
Pt. 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994).
2. A motion for summary judgment should be granted only when it is clear
that there is no genuine issue of fact to be tried and inquiry concerning the facts is not
desirable to clarify the application of the law. Syl. Pt. 3, Aetna Cas. & Sur. Co. v. Federal
Ins. Co. of N.Y., 148 W.Va. 160, 133 S.E.2d 770 (1963).
3. Summary judgment is appropriate where the record taken as a whole could
not lead a rational trier of fact to find for the nonmoving party, such as where the nonmoving
party has failed to make a sufficient showing on an essential element of the case that it has
the burden to prove. Syl. Pt. 4, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994).
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.
Through this action, Michael Slivka, plaintiff below, appeals the
September 24, 2002, order of the Circuit Court of Wood County granting summary
judgment for the defendant below and appellee herein, Camden-Clark Memorial Hospital
(hereinafter referred to as Camden-Clark). The complaint filed by Mr. Slivka in the circuit
court alleged that Camden-Clark's policy of not hiring male nurses in the obstetrics unit of
the hospital constituted gender discrimination in violation of the West Virginia Human
Rights Act (hereinafter referred to as Act). See W.Va. Code §§ 5-11-1 to 21 (Repl. Vol.
2002). The lower court ruled that Camden-Clark had demonstrated that the gender
requirement was a bona fide occupational qualification (hereinafter referred to as BFOQ)
within the statutory exception to the Act's general prohibition of discrimination in hiring
practices. Following due consideration of the record as submitted, the briefs of the parties
(See footnote 1)
and arguments before this Court,
(See footnote 2)
the judgment of the court below is reversed
and the case is remanded for further development.
Before going to work for Genesis Healthcare, Mr. Slivka had applied for a
position as a staff RN in the obstetrical department of Camden-Clark
(See footnote 5)
in January 2000.
While it is unsettled as to whether an offer of employment was actually made, it is clear that
Camden-Clark informed Mr. Slivka that although male nurses were employed in other
departments of the hospital, male nurses had never been hired to work in its obstetrical
department due to concerns for patient privacy, staffing and quality of care.
(See footnote 6)
In response to the hospital's explanation for refusing to consider him for employment in the obstetrical unit, Mr. Slivka filed suit in the Wood County Circuit Court on January 16, 2001. Following discovery, Camden-Clark moved for summary judgment, after which Mr. Slivka filed a like motion. A hearing on the motions was held on September 12, 2002. Thereafter, the lower court granted summary judgment to Camden- Clark through its September 24, 2002, order in which it was stated:
2. The Court finds that, based upon the privacy concerns of the hospital's patients and their families, as well as factual evidence that the presence of male nurses in the obstetrics ward has previously caused, and would continue to cause, conflicts among patients, doctors, and hospital staff, Camden-Clark Hospital has factually established sufficient grounds to demonstrate that it is a permissible BFOQ in the hiring of obstetrical ward nurses that they be females.
3. A review of the applicable case law demonstrates that all courts that have addressed the issue of whether sex-based hiring may be a BFOQ for obstetrical ward nurses have found that it may be a bona fide occupational qualification that said nurses be females. Despite the court's request at the hearing held in this matter, plaintiff's counsel has been unable to provide the Court with any contrary authority. Accordingly, the Court finds that the legal authorities agree that sex based hiring of obstetrical ward nurses may be a BFOQ.
Mr. Slivka petitioned this Court to appeal the summary judgment order, which was granted by order dated June 18, 2003.
We have heretofore noted that [s]ummary judgment is appropriate where the
record taken as a whole could not lead a rational trier of fact to find for the nonmoving party,
such as where the nonmoving party has failed to make a sufficient showing on an essential
element of the case that it has the burden to prove. 192 W.Va. at 190, 451 S.E.2d at 756,
Syl. Pt. 4. In the course of such review, this Court construes the facts 'in a light most
favorable to the losing party [.]' Alpine Prop. Owners Ass'n., Inc. v. Mountaintop
Dev.Co., 179 W.Va. 12, 17, 365 S.E.2d 57, 62 (1987) quoting and citing Masinter v. Webco
Co., 164 W.Va. 241, 242, 262 S.E.2d 433, 435 (1980). Mindful of these precepts, we turn
to the issue before us to determine whether there was adequate relevant evidence to
substantiate a BFOQ and thus warrant the entry of summary judgment for Camden-Clark.
In instances of disparate treatment,
(See footnote 8)
as we have in the case before us, the only statutory
defense on which an employer can rely to support its facially discriminatory policy is the
BFOQ exception. As stated in the Act:
It shall be an unlawful discriminatory practice, unless based on a bona fide occupational qualification, or except where based upon applicable security regulations established by the United States or the state of West Virginia or its agencies or political subdivisions:
(1) For any employer to discriminate against an individual with respect to compensation, hire, tenure, terms, conditions or privileges of employment if the individual is able and competent to perform the services required. . . .
W.Va. Code § 5-11-9 (1998) (Repl. Vol. 2002).
At the heart of the dispute before us is what are the elements a defendant must
prove to establish a gender-based BFOQ when privacy interests are involved. We have
addressed the Act's BFOQ exception only twice before. In neither case did we set out a test
or guidelines for evaluating a BFOQ claim. 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), we
found 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 in various stages of undress,
showering, or attending to their bodily functions. Id. at 139, 375 S.E.2d at 771. We then
noted the factual similarity with Dothard v. Rawlinson, 433 U.S. 321 (1977), a case
involving correctional officers at a state maximum security prison, and summarily concluded
St. John's Home's discriminatory practice was a BFOQ exception to the Act's ban on
discrimination. In a later case, Gibson v. West Virginia Department of Health and Human
Resources, 192 W.Va. 372, 452 S.E.2d 463 (1994), we recognized that gender could be a
criterion for a BFOQ even though that issue was not then properly before the Court as it had
not been preserved below by the appellant. Because these earlier cases did not analyze the
BFOQ exception or set out a test to apply in subsequent circumstances, we first must
establish the means to evaluate when a BFOQ exception to a discriminatory employment
practice may be acceptable in order to determine whether summary judgment was
appropriately granted in this case.
When faced with issues requiring us to interpret the provisions of the Act, we
have consistently held that such cases are governed by the same analytical framework and
structures developed under Title VII [of the Civil Rights Act of 1964], at least where our
statute's language does not direct otherwise. Barefoot v. Sundale Nursing Home, 193
W.Va. 475, 482, 457 S.E.2d 152, 159 (1995). The BFOQ provision of the Act clearly does
not direct otherwise. Moreover, the wording of the BFOQ exception in the federal statute
and our Act are quite similar, with the pertinent part of the federal law providing:
(a) Employer practices
It shall be an unlawful employment practice for an employer _
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex or national origin . . . .
(e) Businesses or enterprises with personnel qualified on
basis of religion, sex, or national origin . . .
Notwithstanding any other provision of this subchapter, (1) it shall not be an unlawful employment practice for an employer to hire and employ employees . . . on the basis of his religion, sex, or national origin in those certain instances where religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise . . . .
Title 42 U.S.C. § 2000e-2 (1991).
Upon examining the BFOQ exception in Title VII of the Civil Rights Act, the
United States Supreme Court has concluded that an employer asserting a BFOQ defense
faces a difficult burden in light of the public policy furthered by the enactment. As the high
court observed, the BFOQ exception is meant to be an extremely narrow exception to the
general prohibition of discrimination on the basis of sex. Dothard v. Rawlinson, 433 U.S.
321, 334 (1977). Under consideration in Dothard was a state penitentiary's policy for
excluding females as correctional officers having direct contact duties with the general
inmate population, which included sex offenders prone to violence. Borrowing from lower
federal court decisions, the Supreme Court in Dothard adopted a two-part test to determine
whether such a facially discriminatory policy should be excepted from Title VII's equal
employment mandate due to a safety-based BFOQ. Under the test applied in Dothard, in
order for gender to be a BFOQ, the employer's evidence must establish that (1) the essence
or central mission of its business would be undermined by hiring members of both sexes,
and (2) there is a factual basis for believing that all or substantially all persons of one gender
could not perform the job duties safely and efficiently. Id. at 333.
Since the Dothard test was announced, several federal courts have been faced
with cases involving a privacy-based rather than a safety-based BFOQ. Unlike the cases in
which customer preference as a reflection of stereotypical thinking has failed to justify
discriminatory employment practices,
(See footnote 9)
courts have concluded that customer preference
having roots in an individual's beliefs regarding personal privacy and modesty may form the
basis of a gender-based BFOQ. As summarized by one court considering a case with facts
similar to the one before us, an expectant mother has a greater right to a preference than the
typical business customer or client since '[h]ere personal privacy interests are implicated
which are protected by law and which have to be recognized by the employer in running its
business.' Fesel v. Masonic Home of Delaware, Inc., 447 F.Supp. 1346, 1352 (D.Del.1978),
aff'd mem., 591 F.2d 1334 (3rdCir.1979). Equal Empl. Opportunity Comm'n v. Mercy
Health Center, 1982 WL 3108, 5 (W.D. Okla. Feb. 2, 1982) (hospital hired only female
nurses in labor and delivery unit). Although the United States Supreme Court has not
squarely addressed privacy as the basis for a BFOQ, in International Union, United
Automobile, Aerospace and Agricultural Implement Workers of America, UAW v. Johnson
Controls, Inc., 499 U.S. 187 (1991), the Supreme Court pointedly commented that:
We have never addressed privacy-based sex discrimination and shall not do so here because the sex-based discrimination at issue today does not involve the privacy interests of Johnson Controls' customers. Nothing in our discussion of the essence of the business test, however, suggests that sex could not constitute a BFOQ when privacy interests are implicated.
Id. at 206 n. 4. In examining this excerpt from Johnson Controls, a Minnesota United States District Court concluded that privacy considerations properly enter into the BFOQ analysis where they go to the core of an employee's job performance, and where that performance is involved in the central purpose of the enterprise. Hernandez v. University of St. Thomas, 793 F.Supp. 214, 216 (D. Minn. 1992). In this vein, courts generally have recognized privacy concerns as justifying a BFOQ in occupations which involve intimate bodily contact or routine exposure of the bodies of service recipients. See e.g. Jones v. Hinds General Hospital, 666 F.Supp. 933 (S.D. Miss. 1987) (catheterization and other intimate services provided male patients by nurse's aides); Norwood v. Dale Maintenance System Inc., 590 F.Supp. 1410 (N.D. Ill. 1984) (washroom attendant); Brooks v. ACF Industries, Inc., 537 F.Supp. 1122 (S.D. W.Va. 1982) (janitor cleaning bathhouses and restrooms); Backus v Baptist Medical Center, 510 F.Supp. 1191 (E.D. Ark. 1981), vacated on other grounds, 510 F.Supp. 1191 (8th Cir. 1982) (nurses in obstetrics unit of hospital where intimate procedures performed and female body and genitalia routinely exposed); City of Philadelphia v. Pennsylvania Hum. Rel. Comm'n, 300 A.2d 97 (Pa. 1973) (supervisory personnel at youth residential center monitored showers and conducted body searches).
Most federal courts examining BFOQ cases in which privacy interests are
raised have modified the Dothard test by adding a third component. In cases involving
nursing or other patient care positions, courts have upheld discriminatory practices based on
demonstrated privacy concerns of clients when an employer demonstrates a factual basis for
the employer's belief that: (1) not hiring patient care workers of one sex exclusively would
undermine the essence of the business operation, (2) all or substantially all members of a
particular sex would be unable to perform the duties of the job in question; and (3) it is not
feasible due to the nature of the business operation to assign job responsibilities in a
selective manner so as to satisfy both the privacy interests of patients and the equal
employment opportunity principles of Title VII.
The court in Fesel v. Masonic Home of Delaware, Inc., 447 F.Supp. 1346 (D.
Del. 1978), aff'd, 591 F.2d 1334 (3rd Cir. 1979), considered a case in which a nursing home
refused to hire male nurse's aides due to the privacy interests of its patients. As denoted in
the following excerpt, in addition to the factors of the Dothard test, the court found that an
additional burden should be shouldered by an employer seeking to establish a BFOQ
exception based on client privacy interests:
[The] employer must prove not only that it has a factual basis for believing that the hiring of any members of one sex would directly undermine the essence of the job involved or the employer's business, but also that it could not assign job responsibilities selectively in such a way that there would be minimal clash between the privacy interests of the customers and the nondiscrimination principle of Title VII.
447 F.Supp. at 1351. Finding that the nursing home's refusal to employ males as nurse's aides was justified based on privacy concerns, the Fesel court noted that the Dothard test was met by the employer's evidence of the intimate personal care duties performed by nurse's aides at the nursing home and by testimony of supervisors, physicians, residents of the home, families of the residents and expert witnesses stating that the female residents would not consent to such care administered by males and would leave the nursing home if males were hired. As to alternative assignment of job duties, the court found that the record showed alternative, selective assignment of job responsibilities was not feasible due to the size of the staff in relation to the shift configuration used at the nursing home.
Applying virtually the same standards, the court in Jones v. Hinds General
Hospital found a hospital's gender discriminating policy, which resulted in female nurse
assistants being laid off before male orderlies with less seniority, was justified for privacy
reasons. The evidence relied upon by the Hinds court included objection and refusal by a
significant number of male patients to procedures of an intimate nature being performed by
female assistants, thus precluding all or substantially all females from performing intimate
procedures on male patients. Additionally, the court was convinced that no alternative
practices with less discriminatory effect existed which would satisfy the legitimate needs of
the hospital given the size and organization of the business.
In a case more factually similar to the one before us, a United States District
Court in Arkansas concluded that, based on patient privacy and personal dignity concerns,
being female was a BFOQ for a hospital's labor and delivery nursing staff. Backus v.
Baptist Medical Center. In support of its finding that the business operation would be
undermined if the practice was not continued, the court in Backus cited statements of
patients, doctors, nurses, and administrators who testified that male labor and delivery nurses
would not be acceptable to obstetrical patients. Also considered were patient complaints
which had been filed against the subject nurse based on his gender. Additionally, the court
was persuaded by the asserted probability that once a patient became dissatisfied with how
services were provided, the patient would go elsewhere for services in the future. With
regard to realignment of duties, the court considered evidence of nearly constant exposure
of a patient's genitalia in an obstetrics setting and the hospital's policy requiring a female
to be present whenever a patient's genital area was examined by a male. As a result, the
court in Backus concluded that alternative arrangements could not be made to satisfy both
the privacy interests and dictates of Title VII without creating unmanageable staffing
problems. The same conclusion was reached when the test was applied to comparable
evidence in Equal Employment Opportunity Commission v. Mercy Health Center, 1982 WL
3108 (W.D. Okla. 1982), in which a hospital's policy for hiring only female nurses in the
obstetrics department was also at issue.
As a result of our study of the factors raised in the foregoing cases, we
conclude that 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. We turn now to the case sub judice to examine whether these
standards have been met so as to sustain the entry of summary judgment.
Although our review is de novo, we initially observe that the lower court's
findings were based on the general premise that legitimate privacy concerns of Camden-
Clark's obstetrics patients were established. Some justification for this conclusion may be
inferred from the record, in which Patricia Williams, the nurse manager of the obstetrical
unit, by affidavit states:
2. Obstetrics is a unique section of the hospital. All obstetrics patients are female. There are few duties that an OB nurse can perform that are not sensitive or intimate. An OB nurse's routine duties include, but are not limited to: (1) checking a patient's cervix for dilation and performing vaginal exams of patients to check for progress of labor, (2) shaving a patient's perineum, (3) sterilizing a patient's vaginal area, (4) checking patients for vaginal bleeding, (5) massaging a patient's fundus, (6) monitoring fetal heartbeats both internally and externally, (7) assisting mothers with breastfeeding [sic], (8) examining a mother's nipples post-brestfeeding [sic], and (9) checking the perineum for bruising and edema.
3. Unlike other areas of the hospital, obstetrics patients constantly have their genitalia exposed. Consequently, it would be impossible to assign male nurses to perform non-intimate duties because most duties of an OB nurse, unlike the duties of nurses in other areas of the hospital, involve exposure of the genitalia.
4. In my personal experience with male student nurses
in the obstetrics department, approximately 80% of patients
objected to having a male nurse.
We also note that an affidavit of a physician specializing in obstetrics and gynecology with staff privileges at Camden-Clark established that the doctor would refuse to make rounds without a female nurse as a chaperone and related the doctor's belief that it would be inappropriate to have male nurses in the obstetrics unit [d]ue to concerns with patient comfort level and the nature of the intimate care performed by obstetrical nurses.
The intimate and intrusive procedures routinely performed in the obstetrics
department may well raise privacy concerns in patients. Nevertheless, since privacy interests
are rooted in the beliefs and mores of individuals, we are troubled by the lack of evidence
from patients themselves. Furthermore, the nurse manager's statement regarding eighty
percent of the patients objecting to male student nurses provides marginal information in that
it fails to quantify the patient population observed, the length of the observation, how long
ago the observed events occurred or the degree of and reason for the patients' objection.
The actual privacy concerns of patients is not clearly established by such vague testimony.
For example, the patients objections can be viewed in more than one way. The patients
could have been objecting to students providing services versus males providing services
and that objection could have amounted to refusal of services from males or merely been an
expression of disliking change or simple surprise. The ambiguity of Ms. Williams'
statement becomes more pronounced when Mr. Slivka's deposition, revealing that other
hospitals in the area employ male nurses in their obstetrical units, is taken into account.
Moreover, without further development of the extent of the privacy concerns
of the patients, the other portions of the BFOQ test cannot be applied. 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.
Likewise, absent clarification of the nature and extent of the privacy concerns, realistic
alternative methods of operation would be impossible to propose, let alone deem
It is thus evident that the extent of the privacy concerns of the recipient of
services is necessarily central to the resolution of the issue of whether a privacy-based
BFOQ of gender qualifies as an exception to the statutory mandate against discriminatory
employment practices. This essential element of the BFOQ defense plainly requires further
definition in the instant case. As a consequence, summary judgment in this case is
inappropriate because there are unanswered questions involving issues of material fact for
which further development of the evidence is desirable in order to apply the law. As one
court aptly observed, the legal and factual complexities of the BFOQ . . . make it
particularly difficult to resolve on a summary judgment motion. U.S. Equal Employment
Opportunity Commission v. Sedita, 816 F.Supp. 1291, 1298 (N.D. Ill. 1993). See also
Hernandez v. University of St. Thomas, 793 F.Supp 214, 217 (D. Minn. 1992) (remarking
that BFOQ defense inherently raises factual issues). Accordingly, we reverse the order of
the circuit court and remand the case for further proceedings.
We want to be clear that we are in no way saying that privacy concerns cannot
support gender as a BFOQ. Instead, we emphasize the need for employers and ultimately
courts to fully examine the factual basis for these practices, especially in cases involving
long-standing policies. Personal conduct issues such as modesty are not universally defined
and are ever-changing in our society, making it all the more important to avoid assumptions
and speculations when dealing with such issues. Gender discrimination may be valid in
instances when privacy interests trump the principle of equal employment opportunity. And
while accommodation or balancing of both issues is the goal, it is not always practicable.
In order to assure that gender-excluding practices are indeed essential to preserve a privacy
right, we find it necessary to require a detailed and thorough examination of the
circumstances of each case in which gender is raised as a BFOQ. The lack of definition of
the extent of the privacy interests at stake in this case is only one area in which the record
is deficient. The record is devoid of information about how other hospitals, having
comparable patient population, staff size and level of care, reconcile patients' privacy
interests in their obstetrics department with the employment rights of male nurses. Without
such a backdrop of information, the trial court has no actual basis to determine whether
costs, inconvenience, decreased quality of care and similar factors merit consideration.
While the ultimate burden of persuasion to establish a BFOQ rests with the employer, the
person claiming discrimination needs to be actively involved in developing the evidence.
In some cases, the person asserting discrimination is in a better position to identify and
demonstrate relevant evidence, including that previously mentioned in this case.
For the reasons stated herein, the September 24, 2002, order of summary
judgment entered by the Circuit Court of Wood County is reversed and the case is remanded
for further proceedings conforming with this opinion.
F.Supp. 1410, 1415 n. 3 (N.D. Ill.1984).