Q: I am a licensed clinical social worker working for a nonprofit community mental health center. My agency has been contracted by the local jail to run an in-jail substance abuse treatment program, which I supervise.
Inmates are segregated by sex, with separate housing units for males and females. Some of these units are “open cell blocks,” where inmates are housed in a large, gymnasium-like room that has separate areas for eating, sleeping, showering and using the bathroom. All these areas are exposed with limited privacy. Correctional officers are assigned to these housing units by gender, so that only male officers oversee male inmates and only female officers oversee female inmates.
Our substance abuse program’s group therapy sessions take place in the open cell block units, which means that the jail requires a female counselor for the women and a male counselor for the men — a requirement I support not just for the inmates’ dignity and privacy, but for therapeutic reasons.
Our agency has been struggling to fill a vacant position for a counselor to work with the male inmates. Under these unique circumstances, is there any way to legally advertise for a male clinician that would not run afoul of employment nondiscrimination laws?
A: Ordinarily, posting a job ad that asks specifically for male candidates would look like a textbook example of illegal sex discrimination. But there is a narrow exception under Title VII of the Civil Rights Act for “bona fide occupational qualifications” when the trait in question is “reasonably necessary to the normal operation of that particular business.” As you can see with the jail’s same-sex officer assignments, this exception is “very common in prison situations” when inmates’ privacy is at issue, says Amy Epstein Gluck, employment law partner at FisherBroyles.
In your case, according to Epstein Gluck, if you can provide evidence that a counselor’s sex is “reasonably necessary to the essence of the job” and “there is no better ‘proxy’ (job qualification) for an employee to effectively perform the requirements of the position” — and if no alternative location besides the sex-segregated cell blocks is available for conducting group therapy — then you would seem to have a pretty solid argument for specifically hiring the best man for the job.
Epstein Gluck notes that you’ll want to word the job ad carefully, making clear that the position you’re advertising serves male inmates in an open environment where privacy is a concern. Paying an HR consultant or employment attorney for an hour of their time to review your phrasing might be a worthwhile investment.