Labor & Employment Law Daily Wrap Up, DISCRIMINATION—SEX—M.D. Fla.: DHS established BFOQ defense for gender-based assignments of CBPOs, (Jan 23, 2025)

By Kathleen Kapusta, J.D.

The Customs and Border Protection Officers argued that the assistant port director failed to consider viable alternatives to the discriminatory female-only assignments.

The Department of Homeland Security Secretary sufficiently established, for purposes of the Title VII sex discrimination case brought by five U.S. Customs and Border Protection Officers (CBPOs), that gender-based assignments at the Tampa Airport for the time period in question was a bona fide occupational qualification. Accordingly, a federal court in Florida, refusing to set aside a jury verdict in favor of the Secretary on his affirmative defense, denied the officers’ renewed motion for judgment as a matter of law (Anderson v. Mayorkas, No. 8:22-cv-2941-VMC-CPT (M.D. Fla. Jan. 22, 2025)).

The five CBPOs, three women and two men, sued the Secretary alleging that three female-only night shift assignments at the Tampa Airport in Fiscal Year 2018 violated Title VII’s prohibition against sex discrimination. Asserting a BFOQ defense, the Secretary argued that scheduling three female CBPOs on the night shift was reasonably necessary to ensure that one female CBPO would be available to conduct personal searches of female travelers as needed and one female CBPO would be available to witness those personal searches consistent with CBP’s policy and legal requirements.

Jury verdict. After the court denied the parties’ motions for summary judgment, the case proceeded to trial. Although a jury found that the CBPOs established their prima facie case, it concluded that the Secretary established its BFOQ affirmative defense. After trial, the officers filed a renewed motion for judgment as a matter of law.

BFOQ. The BFOQ affirmative defense, the court observed, recognizes that “classifications based on... sex... may sometimes serve as a necessary proxy for [a] neutral [job] qualification[] essential to the employer’s business.” Further, the court continued, it’s been narrowly construed “to apply ‘only when the essence of the business operation would be undermined by not hiring members of one sex exclusively.’”

Alternatives. In support of their motion, the officers argued that the Secretary failed to establish the department had “no way to rearrange work assignments to avoid a clash between travelers’ privacy interests and its employees’ Title VII rights.” They insisted instead that there were two viable alternatives to the discriminatory female-only assignments: “‘occasionally seeking assistance from female non-CBPOs, as the Personal Search Handbook instructs’ if two female CBPOs were not available for the personal search of a female traveler,” and “paying ‘overtime to female CBPOs who it would call in to perform or witness patdowns of female passengers between 2:00 PM and 11:00 PM on the rare occasions that such a need arose.’”

Legal requirements. Although the court disagreed with the CBPOs, it first addressed the parties’ dispute over the legal requirements of the BFOQ defense in the Eleventh Circuit. Specifically, they disagreed over whether proof that no reasonable alternatives to the challenged discriminatory policy exist is a required element. The court acknowledged that neither the Supreme Court nor the Eleventh Circuit has explicitly held that an element of the BFOQ defense is that alternatives to a discriminatory policy were not viable. But this did not mean that the existence of alternatives to the discriminatory policy was not an important consideration under Eleventh Circuit law.

Indeed, said the court, the jury instructions, which were modeled on the Eleventh Circuit’s discussion of the BFOQ defense in its 1982 Hardin v. Stynchcomb decision, included the requirement that: “Because of the nature of the operation of the Port of Tampa, Defendant could not rearrange job responsibilities in a way that would eliminate the clash between the privacy interests of female travelers and the employment opportunities of male and female CBPOs.”

Not reasonable. Observing that it did not need to resolve this dispute, the court found sufficient evidence for a reasonable jury to conclude that it would not have been a reasonable alternative for female non-CBPOs to perform or witness personal searches on female passengers. Specifically, the assistant port director testified that before the female-only assignments were instituted, searches of female passengers were sometimes being performed or witnessed by male CBPOs, which was against CBP policy, and were sometimes not performed when they should have been.

There was also testimony about how the extensive training CBPOs receive makes them better qualified to conduct personal searches than other non-CBPO law enforcement officers or non-law enforcement CBP employees. Even one of the plaintiffs, who had been working in a non-law enforcement position as a CBP agricultural specialist, testified that she had to undergo 16-18 weeks of additional training to become a CBPO. “The existence of this additional training supports that female CBPOs are the best qualified officers to perform personal searches of female passengers in accordance with the CBP’s specific search procedures,” the court stated, noting that the jury also heard about the special nature of the border search exception under which CBP searches are performed.

Least cost. There was also sufficient evidence for the jury to conclude that it would not have been a reasonable alternative for female CBPOs to be called in on overtime whenever a personal search of a female passenger needed to be conducted at night. The court took judicial notice of a federal regulation, 19 C.F.R. § 24.16, which requires that all work assignments be made in a manner that minimizes the cost of overtime to the government or party in interest and provides that decisions on what hours should be covered by a tour of duty or whether an assignment should be treated as a continuous assignment or subject to commute compensation should be based on least cost considerations.

Noting testimony from the assistant port director that in 2016 and 2017, overtime was being paid for personal searches performed during regular hours when CBPOs should have been assigned to work at the Port of Tampa, the court found that the jury could reasonably have agreed that paying female CBPOs overtime to perform personal searches of female passengers on the night shift was a violation of this “least cost” principle. The jury could also reasonably have concluded that an overtime call-list for female CBPOs would not have been effective as they may have failed to answer calls or may have taken too long to come to the airport to conduct a personal search when needed. Further, CBPOs were subject to a cap on how much overtime they could perform.

Addressing finally the CBPOs assertion in their original JMOL motion that there was insufficient evidence “that Defendant had any factual basis to believe that male CBPOs [] could not safely and efficiently perform the duties of the designated female-only shifts,” the court found they waived this argument because they did not raise it in their renewed motion. Even if they had not waived it, they did not dispute that only females should perform personal searches on female passengers.

The case is No. 8:22-cv-2941-VMC-CPT.

Judge: Covington, V.

Attorneys: Paras N. Shah, National Treasury Employees Union, for Tracy R. Anderson. Mamie Wise, U.S. Attorney's Office, for Alejandro Mayorkas.

Cases: SexDiscrimination Discrimination PublicEmployees Procedure FloridaNews