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.