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Substantial Statistical Disparities in a Workforce Do Not Justify Gender-Based Hiring Policies

On Friday, the Supreme Judicial Court reminded the Boston police department (“BPD”) that it cannot give women a special hiring preference and thereby discriminate against men simply because there are woefully few women in the department. Sean Pugsley sued for discrimination after the BPD deliberately bypassed its main certification list for hiring in order to hire twenty-eight women.  In Pugsley v. Police Department of Boston, the SJC struck a delicate balance, leaving intact the BPD’s hiring decision while criticizing the BPD for the manner in which it conducted its hiring.  Specifically, the SJC dismissed Pugsley’s case, holding that he had no right to sue (or, to be technical, he had no standing) because he was so far down the BPD’s hiring list that he could not show anything more than a speculative injury.

The case arose from a hiring process that began around March 2010.  The BPD hires candidates by considering the following groups in order.  First, it may consider any qualified cadets (up to thirty-five or one-third of a Boston police academy class).  Then the department turns to a “main certification” list.  Top priority on the certification list goes to candidates for “reemployment” – meaning, generally, anyone who has been laid off from the police department.  The next category is for those with a preferred hiring status, such as veterans.  The remainder of the list ranks all other individuals based on their scores on the most recent civil service exam.  Pugsley was the top candidate in this last category; however, because of the other preferences, he ranked 214 on the main certification list.

When hiring, BPD can also request a “selective certification” list that consists of individuals with special qualifications.  In the round of hiring at issue in the case, the department requested lists of female candidates, Cape Verdean speakers, and Haitian Creole speakers, and hired from those specific lists.  The department justified the preference for women by noting that female officers constituted only thirteen percent of the police force, whereas substantially more women came into contact with police officers either as potential suspects or as victims.

As a result of this selective certification, BPD hired twenty-eight women and fifty-five men.

A superior court judge concluded BPD’s actions were justified because gender – being female – was a “bona fide occupational qualification” (“BFOQ”) for the jobs in question.  The SJC dismissed Pugsley’s claim on other grounds, but also made clear that it disagreed with the trial court: a statistical disparity “will generally be insufficient to support a BFOQ.”  As the SJC noted, courts have occasionally found that gender is a BFOQ, notably in an all-female prison with a documented problem of sexual abuse and at a mental health facility where policies required staff members to observe patients in “particularly intimate settings.”  However, the BPD, by relying merely on statistical disparities, had not explained how, if at all, it had made other efforts to recruit women (e.g., whether it made efforts to target female veterans) and such information was “relevant, if not explicitly required” when determining whether the BPD could exercise a hiring preference for women.

The decision is notable because it is one of only a handful of decisions in which the SJC has analyzed the BFOQ defense, despite the fact that the BFOQ defense is written directly into the text of the state’s anti-discrimination law.  An employer who can prove a BFOQ is permitted to hire someone based on their membership in a protected class (e.g., based on that person’s race, gender, religion).  Because this is an exception that has the potential to fundamentally undermine the purpose of anti-discrimination laws – which usually prohibit basing hiring decisions based on an individual’s membership  in a protected class – the exception is generally construed very narrowly.  While the SJC did note that the exception is to be read narrowly, it also emphasized factual justifications for a BFOQ – including the BPD’s specific failure to demonstrate that it could not hire women through other hiring techniques.  This emphasis suggests a potentially troubling willingness to reconsider the BFOQ defense in future cases.  By contrast, in the SJC’s last major decision addressing BFOQ, Sarni Original Dry Cleaners, Inc. v. Cooke, 388 Mass. 611 (1983), the Court, quoting federal law, emphasized the high showing an employer would need to make, namely that “all or substantially all [members of the excluded category] would be unable to perform safely and efficiently the duties of the job involved,” and that “the essence of [an employer’s] business operation would be undermined by not hiring members of one [protected group] exclusively.”

On balance, however, this is a good decision for employees’ advocates.  The SJC did not endorse the trial court’s broad reading of the BFOQ defense and it recognized “the need for and the importance of diversified, professional, police departments.”  The case does, however, highlight serious problems with the statutory scheme for hiring police officers; statutory preferences for former employees and veterans are likely to continue to disproportionately benefit men, keeping well-qualified women out of the work force.  Despite the BPD’s weak justification for hiring additional women, the lack of women in the police force is and should continue to be a serious concern for those who care about a diverse and representative police force.


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