January 28, 2020

Selective selection for appointment by sex permitted under certain circumstances

The Plaintiff in this  action sought a declaration that the Defendants' failure to consider and appoint female candidate on the eligible list established from a civil service examination for the position of  juvenile counselor with the New York City Administration for Children's Services (ACS) violated the State and City Human Rights Laws (Executive Law §296[1][a]; Administrative Code of the City of NY § 8-107[1][a]). Supreme Court found that the Defendants established prima facie that their selective hiring of male applicants as juvenile counselors did not violate the Human Rights Law because, pursuant to the Prison Rape Elimination Act* [PREA] and "industry best practice," sex is a bona fide occupational qualification [BFOQ] for juvenile counselors, and no reasonable alternative to the preferential hiring of male counselors existed to protect the privacy interests of male juvenile detainees. The Appellate Division unanimously affirmed the lower court's ruling, citing Jennings v New York State Office of Mental Health, 786 F Supp 376.

In Jennings the court opined that "[t]he gender-based assignment policy strikes a balance between the patients' privacy interests and the right of Security Hospital Treatment Assist ands [SHTA] to bid for [the] position," explaining that the requirement that at least one SHTA of the same gender as the patients be assigned to the ward is permissible under Title VII."

Plaintiff in this action, said the Appellate Division, "failed to raise an issue of fact as to the existence of reasonable alternatives to preferential male hiring" based on a selective hiring to save overtime compensation. However, opined, the court, gender-based hiring discrimination was appropriate "because the shortages of male counselors still at times forced the employer to assign female counselors to male residence halls, without the required male counterparts, which resulted in female counselors performing pat searches in violation of PREA and best practice.

Another factor, noted the Appellate Division, was that "mandatory overtime contributed to a 65% attrition rate among male counselors during the two years preceding the preferential hiring, which, combined with the overtime, worsened morale and affected performance among counselors.

In addition, the decision notes that Plaintiff failed to substantiate the assertion that better scheduling of staff could have obviated the need for huge amounts of mandatory overtime and the record belies the assertion that better recruitment could have solved the problem of critical shortages of male counselors.

* See 34 USC Sections 30301-9

The decision is posted on the Internet at:

CAUTION

Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the decisions summarized here. Accordingly, these summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.
THE MATERIAL ON THIS WEBSITE IS FOR INFORMATION ONLY. AGAIN, CHANGES IN LAWS, RULES, REGULATIONS AND NEW COURT AND ADMINISTRATIVE DECISIONS MAY AFFECT THE ACCURACY OF THE INFORMATION PROVIDED IN THIS LAWBLOG. THE MATERIAL PRESENTED IS NOT LEGAL ADVICE AND THE USE OF ANY MATERIAL POSTED ON THIS WEBSITE DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP.
Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material in this blog is presented with the understanding that neither the publisher nor members of the staff are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is advised to seek such advice from a competent professional.