‘Divergents’

In a world where certain jobs require women with whistle-bait figures, it would seem odd that men can fall prey to the same regimen.

Roman (not his real name) was let go from his employment because he gained 50 pounds more than his ideal weight. He tried hard to get it back to where it used to be at 165 pounds, but each time he would be sent on compelled leave to get back into shape, the heavier he got. He was considered obese by the company, and he even argued obesity is a sickness. So if they let him go because of this sickness, he should be given separation pay. The Supreme Court (SC) sided with the company.

You see, Roman was an international flight steward. When he got the job, he was at his ideal weight. The SC found the company’s weight requirement as a valid continuing qualification for employment. It is meant to address a security issue because flight stewards are supposed to assist passengers , especially in emergency situations. The SC even said that an obese cabin attendant occupies more space than a slim one. The point that’s not to be missed is that Roman was not dismissed because of aesthetics, but because of impediments to his mobility.

In the US, this kind of employer justification is called bona fide occupational qualification (BFOQ). It is based on law. In the Philippines, there is no express law on BFOQs. Ours comes from SC decisions which, upon rendering, become part of the laws of the land.

The job qualifications of a flight stewardess are a tricky one as they seem to be in a peculiar occupation. For instance, a requirement that a stewardess should maintain her single status has come before the court. It has been attempted to be justified as a policy protective of the marriage and of the family as an institution. It was argued that being a flight stewardess requires the latter to be away from home for prolonged periods of time and this leads to an unhappy married life.

The court, however, saw this as more of a pregnancy related issue, which comes as a consequence of marriage. It is plain to see that a pregnant stewardess would not have the same mobility and agility to assist, and in fact may need assistance herself. This notwithstanding, the court found the policy as invalid discrimination against married women. If you are curious, nowadays, in this country, if a flight stewardess gets pregnant, she will be allowed to do her duties in flight about three months into her pregnancy. Some airlines will give them ground work while pregnant, and some will make them go on leave without pay until they give birth. But they will not lose their jobs because of pregnancy.

If pregnancy is one of the most difficult female roles, it is at least the source of needed favors. Take the case of this employee who had a record of absenteeism. Her absences were at their worst level when she became pregnant. She was terminated for excessive absences, many of them allegedly without permission or excuse. Her absences equated to her habitual neglect of duties, according to the company. The SC took the cudgels for her. The SC ignored her long history of absences because her latest absences due to pregnancy related sicknesses were justified. Even if she was not able to get prior permission to be absent, the company knew that pregnancy is a continuing condition for nine months.

One employment policy based on stereotyping is more common than we know. It is the prohibition among employees to marry one another, and some employers even do not allow relationships among their staff. Employers justify this on the common ground (or stereotyping) that co-employees who tie the knot and work in the same place become inefficient. The SC predominantly ruled that there is no evidence of an important business necessity for this employment qualification.

Strangely, you will see this “no intra marriage” policy in a number of institutions like hotels (Will the service staff connive with the cashier?), schools (Will professors having relationships serve as bad examples to their students?), and manufacturing companies (Will a spouse-boss be able to grant favors to the spouse-staff even if they are in different departments?). These are all contestable in my view and if tested in court, employers will need to overcome the burden of proof that there is a valid business necessity being addressed by the “discrimination”.

An example of a BFOQ against marriage involves a drug company that prohibits its employees from marrying anyone employed by their competition. The SC recognized that this is not discrimination, but a reasonable initiative on the part of the drug company to protect its trade secrets and procedures. It is interesting because responsible spouses would naturally protect their own company that puts food on the table as well as bring the luxuries of life. They would not want to deliberately harm their own employers. It is, however, the unguarded moments (and there are many of those between husband and wife) that the policy is trying to guard against.

Not all employees affected by “discriminatory” policies will have the resources or opportunity to go to court. Employers don’t need the labor case as well. It will be a big service to have a Philippine law on BFOQs that provides a standard of fair treatment in special circumstances, so that strategic business objectives can be preserved, too.

An employee’s happiness lies in a career that allows his or her life to be complete. Unfortunately, this is an aspiration that relies much on the employer. The employer would not be wrong if he applies the test of the common good. But how he treats the “divergents” is the true test of his character.

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Alexander B. Cabrera is the chairman and senior partner of Isla Lipana & Co./PwC Philippines. He also chairs the tax committee of the Management Association of the Philippines (MAP). Email your comments and questions to [email protected]. This content is for general information purposes only, and should not be used as a substitute for consultation with professional advisors.