South-Western Legal Studies in Business

Hospital Must Prove That Hiring Male Nurses in OB Ward Would Be Harmful
Description High court of SW Legal Virginia held that for a hospital to be justified for refusing to hire a qualified male nurse to work in the obstetrics ward, it must prove that sex is a bona fide occupational qualification and that the service or patients would be adversely affected by the presence of male nurses.
Topic Employment Discrimination
Key Words Sex Discrimination; Hiring; Bona Fide Occupational Qualification
C A S E   S U M M A R Y
Facts Slivka is an experienced registered nurse (RN) whose duties had included assistance during deliveries. He applied to be a staff RN in the obstetrics department at Camden-Clark Hospital. The hospital stated that it hired male nurses, but not in the obstetrics department due to concern for patient privacy. Slivka sued for sex discrimination. The trial court held for the hospital; Slivka appealed.

Reversed and remanded. For the hospital to refuse to consider Slivka, it must be able to show that sex of the employee is a bona fide occupation qualification (BFOQ). To prevail under this defense, the employer must prove that the essence or central mission of the business would be undermined by hiring members of both sexes. The employer must provide a factual basis for the belief that members of one gender could not perform the essential duties of the job in question without intruding on legitimate privacy concerns of its patrons. The employer must also show why alternatives to the gender-excluding policy would be impossible or impractical to achieve. These issues must be covered during a trial on the merits.

Citation Slivka v. Camden-Clark Memorial Hospital, 594 S.E.2d 616 (Sup. Ct., W.Va., 2004)

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