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This week the EEOC sued Adam & Eve, a retail distributor of sex toys because several of its stores refused to hire men for sales associate positions.  According to the EEOC, the retailer had several openings at various stores in North and South Carolina.  The position’s requirements were minimal: GED, two+ years of retail experience, and a flexible schedule.  Thirty-two men applied for the positions and each was rejected.  Non-men (i.e. women) were hired instead, thereby allowing even EEOC math wizards to calculate the hiring percentage as 0% men to 100% women.      

Aside from providing with its most salacious and clickbait’y weekly HR Tip title (thanks, EEOC!), it’s a good reminder to employers that, unless there is a bona fide occupational qualification that requires an employee to be a specific gender, only hiring people of one gender might be considered a discriminatory practice.  By 2019, I think most employers get the concept, but what about these gray bona fide occupational qualification situations like Adam & Eve’s?  Though they haven’t answered the lawsuit yet, no doubt Adam & Eve will argue that, in addition to the experience and education requirements for the position, the sales associate must be a woman because of the nature of the product being sold – i.e. sex toys.  The retailer will likely provide objective studies detailing that customers prefer to purchase items in their stores from women, and sales drop when men, in particular, are trying to sell sex toys to female customers.  This is a bona fide occupational qualification argument, and whether it’s successful for Adam & Eve is yet to be known.  Clearly, the EEOC doesn’t like the policy of refusing to consider men for the position and considers it discriminatory on its face We’ll see how it plays out in court as Adam & Eve is in a unique position to cogently argue that gender is an essential requirement for its sales associate position.

Even if Adam & Eve has a colorable defense to the EEOC’s lawsuit, its situation is likely not yours.Very few companies in this country have jobs that could legally require the employee to be of a certain gender. Perhaps the lesson from the new Adam & Eve lawsuit then is to monitor your hiring practices and percentages of hiring men vs. women because, if the percentage is so stark to violate the EEOC’s 80/20 guideline (and certainly hiring 100% of one gender is likely to do that), an increasingly sue-happy EEOC might take issue with the practice.

Thompson Coe and myHRgenius Tip of the Week is not intended as a solicitation, does not constitute legal advice, and does not establish an attorney-client relationship.


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Kevin M. Mosher

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