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The Curious Case of Caster Semenya – What Would an Employer Do?

Posted in CHRO & EEOC, Human Resources (HR) Compliance, Laws and Regulations

At the recent World Track & Field Championships, a fascinating understory developed about the gender of a runner from South Africa, Caster Semenya.  She recently shattered world records and, in doing so, raised suspicions that something else was going on to explain the record runs. With illegal drugs ruled out, officials are investigating whether she has too many male characteristics to run as a woman.

Late yesterday published reports indicated that Semenya did indeed have some male characteristics and had no womb or ovaries.  

For some time now, the case of Caster Semenya has led me to ponder what would happen if this situation developed for a private employer.  

I will say that I don’t have a definitive answer, but the issue is not absurd.  Lawsuits involving "intersex" employees have popped up from time to time and "gender identity" has been proposed as protected class in some federal and state legislation.

Moreover, an employee’s gender may, in some limited circumstances, be determinative of an employer’s decision.  In fact, employers can actually use gender as a Bona Fide Occupational Qualification (BFOQ) in their employment decisions in rare cases.

For example, where a customer’s privacy may be an issue, perhaps in massage therapy, the employer can select individuals based on gender.  Or an employer can cast individuals for roles in artistic productions based on gedner.  The EEOC’s regulations on gender as a BFOQ are fairly detailed. And because an employer can use gender as a factor in such circumstances, there might be an instance where an employer wants to be sure.

So, can an employer ask an applicant to state his or her gender? Yes. That’s done all the time on job applications and is supported by various federal regulations like 29 C.F.R. 1604.7. That regulation indicates that "A pre-employment inquiry may ask “Male………, Female………”; or “Mr. Mrs. Miss,” provided that the inquiry is made in good faith for a nondiscriminatory purpose."

Can an employer go further than that and require a medical examination to verify an applicant’s gender? My brief perusal of the EEOC regulations and Title VII haven’t found anything to answer that question head on.  Courts have adopted rules that, in some cases, prohibit sex stereotyping and there are various proposals out there to expand discrimination laws to include gender identity as a protected class.  (For a very good blog on transgender workplace diversity, check out Dr. Jillian’s Weiss’s page and there are articles that have written on intersex as well). 

However, medical examinations about an employee’s gender identity probably aren’t something that was probably thought of in 1964 when Title VII passed. So unfortunately, there isn’t a clear cut answer to this.

And until society comes to grips with concepts such as gender identity, we aren’t likely to get any definitive answers either.

But it sure is an interesting question to think about. 

  • Peter Goselin

    Dan, I think that it’s great that you pose these questions about gender identity (and not just sexual orientation) in the workplace. No doubt employers, employees, lawyers and judges will need to think about these issues in the future.
    But in one respect I think you may be posing the wrong questions – or at least, questions that will not provide helpful answers. Before we can even talk about whether an employer can require a potential employee to submit to a medical examination to verify the applicant’s gender, don’t we need to know whether the results of an examination will answer that question?
    In the case of Caster Semenya, with the results of a medical examination and medical testing completed do we now “know” whether or not she is a woman? Or do we simply know that sometimes men and women are defined by more than the aggregate of medical tests?
    I suspect that the actual number of jobs for which a medical inquiry will be helpful will be few to none. Tests may confirm that a person lacks one or more attributes commonly associated with their identified gender…but possesses other attributes that do align with that gender. What then? Who or what is the tie-breaker if not the self-identification of the person being tested?
    And since Title VII already makes job discrimination based on sexual stereotyping illegal, what difficulties for an employer will be erased by being able to refuse to hire Applicant A who “failed” a medical examination, when the employer is still obligated to consider for employment Applicant B who may incontrovertibly “pass” the examination but have characteristics, traits or aspects of his or her appearance that are generally ascribed to the other gender?
    And unless an employer requires gender verification of all applicants (unlikely – the testing is time-consuming, expensive and extremely invasive), on what basis will it decide who is the right person to test? To put it more bluntly: who but the person who the employer has sex-stereotyped for not being sufficiently masculine or feminine in appearance or manner will ever be asked to submit to gender verification?

  • http://www.ctemploymentlawblog.com Dan Schwartz

    Actually, I think we’re discussing the same thing and, in some ways, the difficulty that many people have of understanding the concepts of gender identity. For example, even if the results of a test showed more male characteristics than female, what then? Can they not use the female restroom?
    The whole topic is filled with more questions than answers. I thought the Semenya case was a good starting point to think about these issues. If and when the legislature passes laws prohibiting discrimination on the basis of gender identity, I suspect that this may come up more.
    I just posed one issue that come up but I think the other issues you raise are going to be just as important too. Having a dialogue on it is a great step to further understanding and education.