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Sunday, September 14, 2014

SheRides: Permissible Gender Based Discrimination?



So long, Uber. SheRides is the next big thing.  A new taxi service in NYC is shaking up the world of transportation. SheRides is the first of its kind---- a taxi service, by women and for women.

SheRides enters a field predominately controlled and run by men.  Of course, most taxi drivers are male. This taxi service, geared toward women, aims to change that statistic.  SheRides seeks to not only (1) increase the number of women in the taxi driver workforce, but also (2) provide women passengers with a “safer”, more comfortable, alternative. SheRides hopes to capitalize on safety concerns of women passengers----- thinking that most women, if driven around by a stranger, would prefer to be driven by another woman.

So, the question remains—by hiring only women drivers, is SheRides violating the federal law against gender discrimination?

Title VII of the Civil Rights Act of 1964 prohibits discrimination in employment based on certain factors, such as age, sex, race, national origin, and religion.  Importantly, an employer cannot hire or fire a person based on their race. For example, a black male cannot be hired solely because he is black or because he is male and a white woman cannot be fired solely because she is white or because she is a woman.

Employment law is fairly complicated. Although Title VII reads as a strict prohibition against discrimination, certain exceptions exist.

For instance, an employer can discriminate based on sex if sex is a bona fide occupational qualification (BFOQ) of the job.  In order for the protected characteristic (age, sex, race etc.) to be a BFOQ, the employer must show that no person who lacks those characteristics is capable of performing the essential functions of the job. If an employer is able to show that the protected characteristic is a BFOQ, they have an affirmative defense against a discrimination case.

Hooters restaurant, for example, has been sued multiple times over its practice of hiring only women waiters.  Hooter’s argument, I understand, is that being female is a bona fide occupational qualification of servers because Hooters is in the business of providing “entertainment by women”.  Because most cases of this nature against Hooters settle, it is unclear whether courts would buy this affirmative defense.

In less recent history, several airlines were sued over refusals to hire men as flight attendants.  Although several different airlines argued that being a woman was essential to performing the functions of a flight attendant.  Because the essential function of an airline is to provide transportation, and not entertainment or some other intangible, gender cannot qualify as a requirement for flight attendants.  Airlines simply cannot show that a man is not able to perform the essential functions of a flight attendant and assist passengers during travel.

What does this mean for SheRides?

While I completely understand and appreciate SheRides dual purpose of making women feel comfortable and employing more women in the transportation industry, I do not see how this gender-based hiring can survive.

If SheRides argues that being a woman is a BFOQ to the job, the company will have to find some other distinguishing role a woman serves as a driver other than mere driving.  At this stage, I have no idea what SheRides will argue.  The company may argue that, by employing only women, they are remedying past discrimination against women drivers. It is unlikely this argument will work.

Although I love this idea, I simply do not see how this hiring practice is permissible under Title VII.


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