What do you think of this job ad?

[Guest ral]

Hi folks.  I don't post often but, I do enjoy reading the forums.

In my search for a new position, which includes moving from the Texas coast to  Dallas, I ran across this ad on LocumTenens:

 

https://www.locumtenens.com/family-practice-jobs/nurse-practitioner/texas/job-782594

 

What do you think, specifically with the wording "Female Provider is a MUST..."?

Gender discrimination?

I get the whole "women may be more comfortable with female providers" thing, and I am not posting this to dispute that aspect of care.  I am specifically addressing the advertisement.  Even if the company secretly tossed all applications from male respondents, or interviewed them with no intention of hiring them, is it not bold to put it right out there in the ad that males can just cruise on by?

Could an employer get away with posting, "Female applicants need NOT apply.", without suffering the wrath of the ACLU, Gloria Allred, etc.?

Thoughts?

[south]

Gender discrimination is legal in certain narrow cases, called BFOQ:  (and I think this might qualify)

 

bona fide occupational qualification (BFOQ)

 

A defense to acknowledged discrimination, usually based on the existence of a facially discriminatory policy, such as "individuals over the age of 50 shall not be hired as police officers."

Title VII permits you to discriminate on the basis of "religion, sex, or national origin in those instances where religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business or enterprise." This narrow exception has also been extended to discrimination based on age through the Age Discrimination in Employment Act (ADEA). This exception does not apply to discrimination based on race.

 

[EMEDPA]

So an Indian restaurant couldn't post an ad that says" waiter or waitress needed, must be native of xyz region in India and fluent in local dialect" ?

[ventana]

Strange indeed       ### NP/PA Needed in Dallas ###

 Date posted: 3 weeks ago  Location: TX

Job description

NP/PA Needed in East Dallas ASAP – Dec. 9

• Reason for the need: vacancy

• ASAP – Dec. 9

• Hours are 8-5

• Monday – Friday 

• 15-20 ppd. 

• Seeing mostly adults, but will have to be able to see all ages

• Female Provider is a MUST & have the ability to do pap smears

• No Procedures

• NO DEA/DPS/DOT Required

• EMR eClinicalWorks

• ASAP Credentialing – 1 day

• Dates: ASAP - Ongoing
• Outpatient
• Primary Care
• Suburban
• Multi Specialty Group

[EMEDPA]

planned parenthood doesn't hire male PA/NP

[overthehorizen]

What if the male PA applicant included a cover letter explaining that he was gay and he would wear a rainbow and other gay pride pins on his white coat in order to make female patients feel more at ease. Conversely, do female applicants need to swear an oath that they are not lesbians? Would a lesbian's employment in this clinic be subject to termination if it was later discovered she were a lesbian and the female patients were uncomfortable being examined by a lesbian?

[rev ronin]

Without going into such scenarios, it sounds like the question is really whether patient preference with respect to provider gender actually constitutes a BFOQ.  There's no question in my mind that the female NPs at my practice do more paps than the male PAs, but is that sufficient reason to discriminate in hiring?

[Maynard]

What if the male PA applicant included a cover letter explaining that he was gay and he would wear a rainbow and other gay pride pins on his white coat in order to make female patients feel more at ease. Conversely, do female applicants need to swear an oath that they are not lesbians? Would a lesbian's employment in this clinic be subject to termination if it was later discovered she were a lesbian and the female patients were uncomfortable being examined by a lesbian?

 

Whenever the subject of modesty amongst professionals comes up, invariably someone equates modesty with sexuality, but they're really not the same. Being embarrassed is not the same thing as feeling lusted after. If you asked female patients if they'd rather have a Pap from a lesbian or a gay man, I bet most would pick lesbian (and I bet many-if-not most men would rather get a hernia check from gay man).

 

Without going into such scenarios, it sounds like the question is really whether patient preference actually constitutes a BFOQ.

 

Legally patient preference matters, but only when it involves the patient being exposed. An optometry or psychiatry practice would not be able to get away with it, even if there were a strong patient preference. However, an OB-GYN practice can discriminate against male PAs and a urology practice can discriminate against female PAs if there is a strong patient preference (and, indeed, the patient preference must be there for it to be legal).

 

For this particular practice, if their female patients overwhelmingly don't care about the gender of their caregiver, then what they're doing is illegal. If they serve female patients who care, but they also serve male patients who care (i.e. men who don't want to get a prostate exam from a female), then I really don't know what the legality is.

[rev ronin]

(Note that I expanded my reply while Maynard was responding to it.  My fault, not his)

[Maynard]

Without going into such scenarios, it sounds like the question is really whether patient preference with respect to provider gender actually constitutes a BFOQ.  There's no question in my mind that the female NPs at my practice do more paps than the male PAs, but is that sufficient reason to discriminate in hiring?

 

Yeah, that brings up another dimension: if employers could reasonably work around the issue then they can't legally discriminate. In other words, if an average of three female patients a day demand same gender care and they have already have a couple female PAs working there, then they can't legally discriminate against males. If, however, there were only male providers working there (or they needed a solo provider) then they would have legally justifiable reason to restrict the job to females.

[south]

It just depends on the legal environment you are in and whether or not you think someone has a leg to stand on in front of a jury.  

 

It's less well defined than you might think at first.  Under strict interpretation of the law, I would have to hire a male for my female lingerie model job and hire someone of another religion as a Catholic Priest.  

 

The Hooters case was a recent example.  They were sued twice, and settled both times (for a couple of million bucks, if memory serves - I think both were class actions by the end of it too - but I am far too lazy to look this up to confirm) 

 

This place?  Betting on the majority of patients being uncomfortable with male provider doing paps and such.  Seems reasonable...

[ventana]

my issue with GYN or GU exams

 

the whole same sex provider issue - why does it make a difference from a legal defense perspective

 

shouldn't there ALWAYS be a chaperone offered to EVERY patient.....  in todays day and age of acceptance and open mindedness I am ultra careful in this arena 

[south]

my issue with GYN or GU exams

 

the whole same sex provider issue - why does it make a difference from a legal defense perspective

 

shouldn't there ALWAYS be a chaperone offered to EVERY patient.....  in todays day and age of acceptance and open mindedness I am ultra careful in this arena

Just talking about legal defense of hiring practices as it applies to ... (cue the segue bell)

 

...the fact that a large number of patients much prefer a female provider for these things, regardless of chaperone ... making it much more difficult to justify hiring a male as it would alienate a large number of your customers...making it essential to your business...bam, BFOQ.  

 

I find it amusing that most patients don't understand that the chaperone is there to protect me, not them.  In PA school I had a lady write a letter to my preceptor complaining that I did NOT respond to her flirting while we were alone and kept it professional "like a robot".   You can't win

[GetMeOuttaThisMess]

planned parenthood doesn't hire male PA/NP

 

 

I just looked for grins and there isn't a location in "East Dallas" (surprisingly).  Closest to "East Dallas" would be a suburb listed as Mesquite.  The location in my 'burb always has folks outside on an easement in lawn chairs holding signs, etc., even in bad weather.

[rev ronin]

...the fact that a large number of patients much prefer a female provider for these things, regardless of chaperone ... making it much more difficult to justify hiring a male as it would alienate a large number of your customers...making it essential to your business...bam, BFOQ. 

And that's really the issue: is customer preference a BFOQ? Hooters has been cited as an example, and while I wouldn't know (having never darkened the door of one in my life), I understand that the waitresses tend to be large-chested without being proportionate, and that the customers like it that way.  Could an Asian restaurant avoid hiring white people, just because it would distract from the authenticity of the dining experience to have multiethnic servers?

 

But then, I suspect we are actually well beyond what what we can expect to settle without a lawyer versed in federal and possibly state anti-discrimination law chiming in and setting us all straight by citing the relevant case law.

[BruceBanner]

Tricky, need an attorney to answer this one.

 

My hunch is that it is against the law. They could say "female provider preferred". I cant think of any employment situation where you can flat-out (legally) discriminate on the basis of gender. Age, sure. It's a common sense concept not placing seniors in physically demanding or highly dangerous professions. But gender...

 

There really isnt anything that women are not allowed to do. So the converse should also be true, especially when we are talking about a necessary public health service, not some strip club or Hooters.

 

If it's a pure GYN job, then it's a case where the selection bias probably obviates any legal problems in the first place. Like I cant imagine there are many women lining up for jobs as a nightclub bouncer, working on a oil rig, or roofing. But if it's just primary care (which is how the ad reads), then I would say, in my layperson's legal opinion, it is definitely discriminatory and not legal.

[Maynard]

And that's really the issue: is customer preference a BFOQ? Hooters has been cited as an example

 

It becomes a BFOQ in certain situations. One example, as I've mentioned, is when the "customer" needs to be naked in front of the employee. Another is when the business is selling sex (and by "sex" I don't mean intercourse, just sex-related services). So a strip-club could discriminate against a gender because they're in the business of selling sex. When it comes to Hooters, the courts are of the opinion that Hooters is in the business of selling food, not sex, so they don't have grounds to discriminate.

 

Tricky, need an attorney to answer this one.

 

My hunch is that it is against the law. They could say "female provider preferred". I cant think of any employment situation where you can flat-out (legally) discriminate on the basis of gender. Age, sure. It's a common sense concept not placing seniors in physically demanding or highly dangerous professions. But gender...

 

There really isnt anything that women are not allowed to do. So the converse should also be true, especially when we are talking about a necessary public health service, not some strip club or Hooters.

 

If it's a pure GYN job, then it's a case where the selection bias probably obviates any legal problems in the first place. Like I cant imagine there are many women lining up for jobs as a nightclub bouncer, working on a oil rig, or roofing. But if it's just primary care (which is how the ad reads), then I would say, in my layperson's legal opinion, it is definitely discriminatory and not legal.

Legally, saying "female provider preferred" is not that different than saying "female provider required". If a man were to sue, I can't imagine the choice of words making a difference in court.

 

You generally can't refuse a job just because someone is old. If some 70 year-old Jack LaLanne wants to move furniture and they have the physique to do it, then you can't refuse based on age alone.

 

There are plenty of jobs that are restricted from women. Many gyms, for instance, require the locker room attendant to be of the same gender as the locker room. There are all-male urology practices out there. If you're casting a film, you are legally allowed to tell a woman she can't play Abe Lincoln because of her gender.

 

Having said that, where double standards exist, they generally favor women. If, for instance, a gym has one gender who cleans both locker rooms while they're in use, that gender will always be female (has actually happened to me).

 

Interestingly, race can never legally be used as a BFOQ, so you can't refuse to let Denzel play Lincoln because of his race, and you can't refuse to let a black FBI agent be your undercover KKK infiltrator because of his race. As we all know, however, the law never comes into play in these scenarios because people don't sue, and this brings up a point the people almost always miss in these discussions: What's actually practiced in the real world is not really determined by the law by itself, it's determined by how people use the law to get what they want. There are certainly many cases where courts have flat-out favored women's interests over men, but most of the time when you see a double-standard it's not because the law favors men, it's because men don't sue and women do. Your rights under the law don't become your rights in practice until you and people like you choose to assert them.

[Rhizopus]

I'll give it the benefit of the doubt. Probably just a practice with lots of males and they specifically want female PAs to work with female patients who are only comfortable with female providers. 

[Reality Check 2]

East Dallas could be an interesting location. I did rotations in parts of Dallas (by the way - born and raised there) where we had a full time police officer on site at all times. An underserved and generally interesting locale.... if not moderately dangerous.

 

What if this clinic does assault exams on women and they want female providers?

 

I think certain jobs want male or female based on history and historical patient preference.

 

Doesn't bother me. Get what the patient needs/wants and move on to find another job listing.

 

I had a few prisons in the past say they preferred male providers in max-max settings of male prisons. I said "thanks" and moved on.

 

Just how some jobs are.