A. Screening and Job Requirements

Screening takes place before job applicants are formally interviewed. Proper screening procedure begins with the development of an accurate, detailed job description so that applicants know the type of job that is being offered. Any action that directly or indirectly places limitations on women because of gender is unlawful, especially when it deprives a disproportionate number of women from applying for a position. Some employers illegally screen women from potential jobs on the basis of a perception of physical inability to perform the job offered. For example, an ad or brochure may say "women need not apply." This is probably illegal. Only in certain limited situations are bona fide occupational qualifications (called BFOQs) deemed to be genuine considerations in hiring. Sometimes women are beneficiaries of BFOQs, for example, being offered a job as a clothing model.

A female applicant cannot be automatically screened out because a job involves physical labor, such as heavy lifting beyond the capacity of the average woman; nor can gender be used as a factor for determining whether an applicant will be satisfied with a particular job. BFOQs have been narrowly construed by the courts and the federal Equal Employment Opportunity Commission (EEOC), so an employer must be sure that any qualifications imposed in the screening process are significantly and directly related to successful job performance (i.e., a men's restroom attendant is a job solely for men).

Although employers cannot set a higher requirement than is needed for a job simply to attract a higher-caliber applicant, they can establish basic job requirements and work standards if these do not discriminate. However, as a result of cultural obstacles and practices, women, older applicants, and persons belonging to minority groups may be affected unfairly by job standards based on poor or nonexistent credit (many elder women have never established credit on their own) or level of educational achievement. Courts and anti-discrimination agencies insist that all requirements be related to the successful performance of the job at hand. For example, refusing to hire single custodial parents may discriminate against women, since women are more likely to have physical custody of their children.

This is also true with respect to pre-determined height and weight standards. In one case, the New York State Human Rights Commission awarded $225,000 in wages and $95,000 in emotional distress damages to four female job applicants who previously worked for Pan American World Airways and sought jobs with Delta. As part of the hiring process, the flight attendants were required to take preemployment medical examinations and answer questions pertaining to their place of birth and use of birth control devices. Most significant, woman candidates, unlike males, were required to meet "personal appearance" requirements.

Four otherwise qualified female applicants who exceeded the maximum weight permitted under the height/weight chart were rejected while males with excess weight were accepted. The women claimed that the use of sex-based appearance standards, which imposed more stringent weight and height requirements on females than males and resulted in the denial of employment, violated federal and state discrimination laws.

At the hearing, the complainants' expert testified that the airline's sex-differentiated weight standards had no medical or occupational justification, The airline could not show that this standard was a necessary BFOQ. In fact, the employer lost its case when it was discovered it had abandoned this requirement after the initiation of the lawsuit but prior to the Commission's decision.

Tip:If you believe a company's job requirements are not directly job-related and penalize you because you are a woman, consult a labor lawyer or regional EEOC office immediately. Except in rare instances, employers are forbidden from denying employment to women because of their gender, and it is not sufficient to show a lack of discriminatory intent when a company's selection process favors one class of applicant over another.