You may have heard of Chariot--a new female-only taxi service--is set to launch soon in Boston. While it sounds like a great idea--lots of women feel more comfortable driving with an unknown woman rather than an unknown man--I doubt it will survive the court challenges that are set to come.
What's wrong with a female-staffed business that caters only to females (and male children up to age 13)? Well, lots of things. To make it easy to see the problem, simply switch the genders. What about a ride sharing service that employees only men? Or that says, "white people are more comfortable riding with white people, so we only hire white people and only give rides to white people and children of any race under age 13″? Yeah, the problem is pretty obvious.
There are some jobs where gender is actually a valid hiring requirement. It's called a Bona Fide Occupational Qualification (BFOQ) and it's not handed out to make people feel more comfortable. For instance, customer preferences aren't a valid reason for limiting your hiring pool by race, gender, religion, or other characteristic.
When can you hire based on gender? The law and the courts are pretty specific that to do that, you have to have a business reason that isn't just customer preferences. In the case of Chariot, even though some women prefer women drivers, that preference isn't enough. You need to have more of a reason than preference.
For instance, way back in 1971, Pan Am tried to argue that female flight attendants were necessary because that's what customers preferred. They presented overwhelming evidence that that was, indeed, the case. Pan Am ended up losing, with the 5th Circuit Court writing:
"It would be totally anomalous if we were to allow the preferences and prejudices of the customers to determine whether the sex discrimination was valid. Indeed, it was, to a large extent, these very prejudices (Title VII) was meant to overcome. Thus, we feel that customer preference may only be taken into account when it is based on the company's inability to perform the primary function or service it offers."
So, just how can Chariot argue that women only employees are a BFOQ? Is it impossible for a ride-sharing service to operate with male drivers? Of course not. Do these companies that have male drivers not get any female passengers? Of course not. It will be difficult for Chariot to argue that they can only offer safe rides with female drivers and female passengers.
Safety, incidentally, will be the way they can argue this. It is possible to use gender as a BFOQ in places like prisons for safety reasons, or in a psychiatric hospital that required there to always be one male and one female on duty.
Chariot, though, is talking about their extensive background checks as being a plus-since women can be rotten people too. They will have to prove that men who pass the same background checks are still dangerous to female passengers. I'm guessing that's going to be impossible.
What about changing Chariot to be a company that hires men and women but still only provides rides to women? Like the women-only gyms do. Well, the reasons women only gyms are allowed don't qualify for a taxi service.
Pasha Law Firm describes why women only gyms are allowed to exist. In some cases, they can be considered private clubs which can legally pick and choose their membership. Otherwise, they have to meet the following qualifications:
- Not excluding members of one sex would harm business operations,
- The customers' privacy interests are entitled to protection under law, and
- No reasonable alternative exists to protect customers' privacy rights.
Since no one cares who was in a taxi before or after them, having men ride in the same Chariot car that a woman is about to get in has no impact on a woman's decision to use that car service. There are no privacy interests here, so that's a no-go.
it should take about 15 minutes after Chariot launches for the first person to file a lawsuit. We'll see how it goes. Maybe I'm wrong, but I doubt it. My prediction is that Chariot caves and re-markets itself as the ride-sharing service with extensive background checks. Safe for everyone.
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