Document Type

Article

Abstract

The article proceeds in three main parts. First, it discusses the general case law surrounding customer preferences for a particular gender, looking at the enactment and development of the BFOQ defense, particularly in the context of customer preferences. It argues that the courts' general rejection of the customer preference rationale for BFOQs was entirely appropriate, given that these preferences typically reflected malignant gender biases--most often, chauvinistic attitudes that result in female subordination. Second, the article examines the rise of the privacy BFOQ. It argues that the courts were correct in recognizing the privacy BFOQ, given the qualitatively different nature of the customer preferences at issue in these cases. It acknowledges that the critical commentary regarding the privacy BFOQ is largely negative, but suggests that these commentators tend to incorrectly assume that customer preferences for same-gender healthcare necessarily derive from unconscious prejudices about “appropriate” gender roles and women's sexual vulnerability. In making this argument, the article highlights the reasons that actual patients of female OB-GYNs have given for preferring same-gender gynecological care. Moreover, the article argues that courts have not gone far enough in recognizing BFOQs in the healthcare context. In so doing, it identifies cases in which courts explicitly refused to find a gender BFOQ despite the considerable gender-related therapeutic interests implicated by the employment position in question, simply because of their belief that only bodily privacy interests could justify a BFOQ. The article suggests that the privacy BFOQ should be broadened, based on the three criteria described above, to cover a wider range of cases. The article's final section turns to the specific issues surrounding the male OB-GYN. It analyzes how a discrimination lawsuit brought by a male OB-GYN would likely be addressed under the current doctrine, and then evaluates how the case would be considered under the reformulated BFOQ.

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