I’m a lawyer. My job is to get the best result I can for my client. Sometimes that means sending a man.

Discrimination is not always black and white.

If I am dealing with a judge who discounts what women say because a woman is saying it, I call in a token Y chromosome to argue the motion. And there are many male and female judges who favor lawyers who are men.

Is it fair? Nope.
Is it legal? No.
Is it real? Yes.

Bias is Real and We Have to Acknowledge It

I discriminate against myself because the difference matters to my client. It is my job, and I have a legal and ethical duty take everything into account.

I have to deal with what is, not what should be.

Sometimes the reverse is also true. Male attorneys have called me in to argue a motion or an aspect of trial because, as a woman, I am perceived with more credibility discussing emotional distress. I’ve been asked to argue punitive damages at trial because I have a softer, more sympathetic demeanor, so the clients won’t be hit as hard.

If we have to cross-examine a woman about the sexual positions she can no longer do because of an injury, a woman is more effective than a man. Men come across as bullies or pervs. If the witness is a man, then it depends on the person. A man can get another man to start bragging about sex. A woman can get a man to flirt and betray the complete lack of sex claim.

Lawyers take into account the gender, race, and religion of the person they send to court or to handle a deposition all the time. They have to.

The same thing happens in sales, recruiting, and anywhere money or power is at stake. In other words, everywhere. All the time.

Are men capable of talking about emotions, showing a softer, kinder side, and demonstrating empathy? Of course. Are some women horrible at it? Yes.

Yet, the world is full of bias. And sometimes, if you don’t take that into account, you don’t solve the problem, win the case, or close the deal.

On one level, it is simply acknowledging the world as it is and finding the most effective way to communicate and achieve a perfectly legitimate objective.

On another, it is exactly making business decisions based on race, gender, or religion, which is potentially illegal.

When is Choosing the Right Person for the Job Illegal Discrimination?

Basically, when the decision is discrimination, which is potentially all of the above cases. Both state and federal discrimination laws prohibit discrimination against any person with respect to hiring, firing, compensation and any term, condition, or privilege of employment. Many states also have laws that prohibit businesses open to the public from refusing to do business with clients or customers based on any protected class (which vary by state).

There is a business necessity defense that allows employers to choose an applicant or employee when the job itself requires a certain skill or trait.

One type of business necessity defense is “BFOQ,” which stands for Bona Fide Occupational Qualification (whatever that means, and no one is sure).

A BFOQ defense acknowledges that a certain practice or selection process is discriminatory, but claims that the practice is required based on a legitimate business necessity. It can be raised in gender discrimination cases, but not race, color, or national origin cases.

Many businesses have tried to assert that customer preference justifies a certain type of person for the job. For example, same gender prison guards have been upheld as legitimate. In contrast, Hooters keeps settling the gender discrimination cases it gets, even though its official position is that being a beautiful woman with large breasts is a legitimate job requirement for its servers.

There is also a broader business necessity defense that applies to disparate impact cases when a neutral employment policy has a discriminatory effect in practice. For example if a job requires lifting 80 lbs, fewer women will apply or be qualified for the position, because physics. But the defense does not apply in cases where a specific individual is chosen, or not chosen, for a task or project because of gender or race (or other protected class).

So choosing lawyers, or sales people, or anyone to do something based on their gender or race will usually be illegal. Yet it happens all the time.

What to Do?

First, figure out where you are making decisions that require a certain type of person for a job, and see if it really is necessary. It might be. But often it’s a practice based on habit, perceptions, or assumptions. Decision makers, and their attitudes and biases, change often. You may think sending a 50 year old white guy is the best course, but you could easily be wrong.

Next, if your company is doing something illegal to accommodate the discriminatory attitudes of certain clients, consider whether you should be doing business with these people. Sometimes you have to, but not always.

If you are stuck with a judge or a client who is a racist or misogynist, then acknowledge it and send the person who will handle it best for the company or your client. But don’t stop there.

Really look at your hiring practices and assignment of work, and make sure you are doing everything you can to promote diversity and equal opportunity in the big picture.

Pair people together and establish mentorships between people of different genders and race. Encourage them to talk about the bias they encounter and figure out how best to handle it.

The truth is, I don’t want to argue a case to a judge who is not going to listen to me and who will rule against me. I am not going to complain about a man getting that gig. But I will be watching to see if guys always get the big cases, or the work that allows them to earn bigger bonuses or be in the spotlight. I don’t need every choice assignment, I just need my share, and a fair shot at the next big one.

So when reality comes up against what is legal, make sure you are being fair overall, that you absolutely have to make the choice you made based on the legitimate interests involved, and that discrimination is not your standard operating procedure.

Creating an inclusive, diverse, and successful work place is not about getting every decision perfect. It’s about fairness, openness, and care.