Labor & Employment Law Daily Wrap Up, DISCRIMINATION—SEX—11th Cir.: Jury verdict finding CBP proved BFOQ defense in relation to female-only shifts upheld, (Feb 11, 2026)

By Marjorie Johnson, J.D.

“There was sufficient evidence for the jury to conclude that CBP had no way to rearrange job responsibilities to eliminate the conflict between its [officers’] Title VII rights and compliance with its search policies.”

Four U.S. Customs and Border Protection officers (CBPOs) failed to convince the Eleventh Circuit to overturn a jury verdict finding that the agency did not violate Title VII by designating three female-only night shifts in order to have female officers available to conduct personal searches on female travelers at the Port of Tampa. In an unpublished opinion, the appeals court rejected the officers’ contention there was insufficient evidence for the jury to conclude that CBP’s policy was justified by a BFOQ that female CBPOs conduct and witness searches of female travelers. Rather, the jury reasonably found that the alternatives suggested by the officers—using non-CBPOs to perform or witness searches or using paid overtime to bring in off-duty female CBPOs when necessary—were not viable (Anderson v. Secretary, U.S. Department of Homeland Security, No. 25-10226 (11th Cir. Feb. 6, 2026, unpublished)).

Same gender requirement. The CBP handbook provides that “[a] CBP officer conducting a personal search... must be of the same gender as the person being searched, except when the officer conducts an immediate patdown for officer safety.” Additionally, a witness of the same gender must also be present for all searches except for “immediate patdowns for officer safety.”

Lawsuit. The officers’ lawsuit did not challenge the CBP’s policy of same gender searches. Rather, they claimed its policy of designating female-only shifts violated Title VII. A jury disagreed, and found that CBP had established the BFOQ defense. The officers appealed the district court’s denial of their motion for judgment as a matter of law.

BFOQ defense. Under Title VII, the bona fide occupational qualification (BFOQ) defense allows an employer to discriminate “on the basis of his religion, sex, or national origin in those certain instances where religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise.” The Eleventh Circuit explained that “[t]his narrow exception permits sex-based discrimination only if the business’s essence would be undermined without the policy.”

Non-CBPOs not viable option. Acknowledging that CBPOs “have the authority to demand the assistance of any person in making any arrest, search, or seizure authorized by any law enforced or administered by customs officers, if such assistance may be necessary,” the Eleventh Circuit found sufficient evidence for the jury to determine the use of non-CBPOs to conduct searches on female travelers was not viable.

Availability issues. The officers argued that CBP at the Port already turned to local police, TSA agents, and airline employees to aid in searches when two female CBPOs were not available. However, the agency presented evidence that despite the availability of this option, it had conducted searches of female passengers that did not comply with its policies and failed to conduct searches on female passengers when they should have been performed. In addition, the union president testified that Tampa police officers and TSA agents were not always available to assist with searches, there was no guarantee there would be a female officer available, and even if the police were able to assist, there could be a long delay before they could help.

Training and expertise. Even if these non-CBP employees were available, there was sufficient evidence for the jury to conclude that it was still not viable for the agency to rely on non-CBPOs to conduct searches. The record showed that CBPOs received extensive training in the use of firearms, defensive tactics, and less-lethal force options, which was necessary because they could encounter combative travelers. Moreover, CBPOs had to understand the limits of their search authority under the Fourth Amendment’s border search exception—training that TSA agents and local law enforcement were not likely to have received.

Noncompliant searches. The officers also argued that the district court erred because the evidence showed the use of non-CBPOs was rare, and that the evidence was insufficient to show that use of non-CBPOs would jeopardize the agency’s operations. However, while the parties disputed the exact number of noncompliant searches of female travelers, there was evidence that some number of noncompliant searches occurred. The Eleventh Circuit found these noncompliant searches were sufficient for the CBP to be concerned for travelers and its employees.

Finally, although the officers argued the CBP had authority to compel non-CBPOs to assist with searches, and the statute allows the CBPOs to demand assistance, the CBP’s handbook emphasized that this authority should be used only when another CBP officer is unavailable. Accordingly, there was sufficient evidence for the jury to conclude that relying on non-CBPOs to conduct searches was not a viable option.

Overtime cost considerations. The record also supported the jury’s finding that it was not viable for the CBP to pay off-duty female CBPOs overtime to report to work to search female travelers. The district court took judicial notice of a regulation requiring CBP management to assign overtime shifts in a manner that minimizes cost to the government. Therefore, the jury could have reasonably made the factual determination that foregoing overtime payments would minimize costs, and the additional costs of overtime made it an unviable option. In addition, the jury considered evidence that there were logistical problems with relying on overtime because it could be hard for management to reach off-duty employees, and even if they could reach them, the passenger would need to wait for the CBPO to arrive.

The case is No. 25-10226.

Judge: Per Curiam.

Attorneys: Jessica Horne, National Treasury Employees Union, for Tracy R. Anderson, Mauricio Guerrero, and Sageline Laurent. Sarah Anne Zylstra (Boardman & Clark) for Secretary, U.S. Department of Homeland Security.

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