The U.S. Equal Employment Opportunity Commission

EEOC Office of Legal Counsel staff members wrote the following informal discussion letter in response to an inquiry from a member of the public. This letter is intended to provide an informal discussion of the noted issue and does not constitute an official opinion of the Commission.


TITLE VII – BFOQ PSYCHOTHERAPY

August 22, 2005

Dear

This is in response to your e-mail inquiry regarding the bona fide occupational qualification (BFOQ) exemption under Title VII of the Civil Rights Act of 1964. Specifically, you have inquired whether sex can be a BFOQ when “[a] treating clinician/psychiatrist strongly recommends as patient treatment, that the patient be cared for by female staff, due to multiple mental disability diagnoses and abuse (patient’s negative reaction to males is believed to be a factor that will hinder her treatment program).” While the Commission is unable to assess the legality of particular employment practices outside the context of specific charges of discrimination and a complete investigation, we can provide some informal guidance.

As you obviously know, Title VII permits gender based assignment if gender is a “bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise.” 42 U.S.C. § 2000e-2(e). However, the BFOQ exception is very narrow and applies only in limited circumstances. 29 C.F.R. § 1604.2; EEOC Compliance Manual Section 625: Bona Fide Occupational Qualifications, at § 625.1. Under this standard, an individual cannot be excluded because of sex unless that individual’s sex prevents him or her from being able to safely or efficiently perform job-related activities that fall within the “essence” of the employer’s business. Int’l Union, United Auto. Aerospace & Agric. Implement Workers of Am., UAW v. Johnson Controls, Inc., 499 U.S. 187 (1991).

Initially, we note that Title VII only prohibits employment discrimination. Thus, for example, Title VII would not prohibit an individual from selecting a psychotherapist for private counseling on the basis of sex since the individual and his or her psychotherapist would not be in an employer-employee relationship. Also, Title VII applies only to businesses that employ fifteen or more people.

Assuming that this is a Title VII covered employer, however, basing patient assignment on the employee’s gender is permissible only if sex is a BFOQ for that particular assignment. Whether sex is a BFOQ is a fact-specific determination that is limited to the particular circumstances in which the defense is raised.

Although the BFOQ exemption is very narrow, EEOC and the courts have recognized that the psychological needs of an employer’s clients or customers can make sex a BFOQ. E.g., EEOC Compliance Manual Section 625: Bona Fide Occupational Qualifications, at § 625.8; Chambers v. Omaha Girls Club, 840 F.2d 583 (8th Cir. 1988). For sex to constitute a BFOQ under such circumstances, the fulfillment of the psychological needs of the clients or customers must fall within the essence of the employer’s business and be necessary to the normal operation of the employer’s business. For example, in one case, the EEOC determined that a social agency did not violate Title VII when it assigned same-sex counselor-teachers to assist individuals with intellectual disabilities in achieving independent living. EEOC Dec. No. 76-130, ¶ 6692 (CCH) (1976).

Similarly, under the facts you have presented, if medical evidence establishes that assignment of male staff would hinder patient treatment and the essence of the employer’s business is to provide effective patient care, Title VII likely would not prohibit assignment of a female worker to that patient. We reiterate, however, that this determination must be made on a case-by-case basis taking into account the nature of the patient care and the particular patient’s psychological needs.

We hope that this information has been helpful to you.

Sincerely,

– s –

Dianna B. Johnston
Assistant Legal Counsel


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