Is gender a bona fide qualification to be an obstetrical nurse? The West Virginia Supreme Court dealt with that question in an opinion released this morning. A male nurse sued a hospital under the West Virginia Human Rights Act, alleging that the hospital's policy of excluding male nurses from consideration for positions in the obstetrical unit constituted gender discrimination. The hospital argued that privacy interests supported its contention that the gender requirement was a bona fide occupational qualification (BFOQ), and was therefore exempt from the general statutory prohibition against discrimination in hiring practices. The lower court granted summary judgment in favor of the hospital.

In its opinion, the Court reversed the lower court's granting of summary judgment, holding that material questions of fact remain regarding the nature and extent of the privacy concerns at issue. In a new syllabus point [see postscript] the Court set forth three points that employers must prove where it is asserted that privacy interests justify gender being a BFOQ:

1. how the essence or central mission of the business would be undermined by hiring members of both sexes;
2. the factual basis for the employer's belief that all or substantially all members of one gender could not perform the essential duties of the job in question without intruding on legitimate privacy concerns of its patrons; and
3. why alternatives to the gender-excluding policy would be impossible or impractical to achieve

POSTSCRIPT: In case anyone is curious, "syllabus points" are numbered paragraphs prefixed to all written opinions that summarize the legal points decided by the Court. A "syllabus of points adjudicated" is required to be prefixed to written opinions by the West Virginia Constitution. When previously decided points of law are utilized in a case, the Court uses quotation marks to denote that the syllabus point is not new. New syllabus points are only contained in justice-authored opinions; the Court issues per curiam opinions where new points of law are not announced. Both justice-signed and per curiam opinions are published. For a broader explanation, please review the opinion of Walker v. Doe, (ALBRIGHT, J.)(McGraw, C.J. and Starcher, J., concurring in part and dissenting in part)(October 25, 2001) ("This Court will use signed opinions when new points of law are announced and those points will be articulated through syllabus points as required by our state constitution." Syl.pt.2). I like to explain to tour groups that our state constitution requires the Court to provide a "cheat sheet" summarizing the holdings of each opinion.