Nurse questions all female OB-GYN practice

Bruce Wheatley was considering coming back to the Towson area where he grew up when he saw an advertisement for an obstetrics and gynecology practice in Columbia that pitched an all-female staff.

As a nurse, he was dismayed enough to complain to St. Agnes Hospital about the affiliated office, but the hospital defended the hiring practice.

Some women are more comfortable with a female doctor because of the sensitive nature of exams or because they believe another woman better understands their needs. Female-dominated practices are not uncommon in the Baltimore area, by design or happenstance. But experts have mixed opinions about whether hospitals can legally tailor their staffs by creating all-female practices.

"Here we are in 2014, and a major hospital in the USA, is actually spending time, effort and money to keep out trained and qualified males from working with female patients," wrote Wheatley, a registered nurse in Pembroke Pines, Fla., in his complaint.

St. Agnes officials responded in a letter sent Dec. 2 that cited an exception to the Civil Rights Act of 1964 that allows gender-specific hiring under narrow circumstances. Hospital officials told The Baltimore Sun that it's an equal-opportunity employer with an overall OB-GYN staff that is 30 percent male.

But St. Agnes does operate an all-female obstetrics and gynecology practice in Columbia, the Women's OB-GYN Group, which employs 12 physicians.

Hospital officials said employers can discriminate when gender or age, for example, is a "bona fide occupational qualification."

That's the exception, under the Civil Rights Act, that allows airlines to set a mandatory retirement age for pilots on safety grounds. The restaurant chain Hooters, which employs only female waitresses, cited the exception in defending itself against a lawsuit filed by male server applicants but settled before a ruling was made.

"The letter [to Wheatley] specifically mentions that from a legal standpoint, there is nothing unlawful about the OB-GYN Group having an all-female staff because the practice provides intimate and sensitive personal care to a woman's body," said Kirstan Cecil, St. Agnes' director of marketing and communications.

Neither St. Agnes nor any other area hospital faces a lawsuit or has been accused of wrongdoing by government agencies or professional organizations. But if challenged, legal experts say, it's unlikely hospitals could successfully defend hiring only female OB-GYN staff. It's less clear, however, if they could staff one practice or department with only women.

Marley S. Weiss, a law professor in the University of Maryland Francis King Carey School of Law, said the courts would ask if men could do the job. And if 30 percent of St. Agnes' OB-GYN staff are men, she said, "then by definition men can do the work. Period."

Courts also would ask if patients prefer women.

"I do not think patient preference is a legitimate basis for engaging in sex-based exclusion from hiring here, and I especially don't think that argument stands up when at one facility they hire men and at the other they do not," Weiss said. "Are they actually claiming that their patients in Columbia are more sexually private or shy or whatever than those they treat in Baltimore? Are they claiming that they have surveyed their patients?"

Weiss said some individual courts may accept the argument, but a hospital would not likely be able to defend the hiring practices in the long run.

But another lawyer said while proving exemptions to the civil rights law is tough in general, hiring male doctors elsewhere in a hospital system could pass the legal threshold.

"One could easily make a case that we have plenty of centers," said John Singleton, a Baltimore labor and employment attorney. "At one center, we wanted to create this type of environment because some patients are more comfortable with a female doctor."

Historically, most of the nation's doctors, including OB-GYNs, have been men. By 2010, 30 percent of doctors overall were women, while 48.6 percent of OB-GYNs were women, according to the American College of Obstetrics and Gynecology.

For OB-GYNs, the pendulum continues to swing. In 2012, 82.5 percent of all OB-GYN residents were women.

Other hospitals say this, more than patient preference, is likely to guide hiring in the future.

Several area hospitals, including Johns Hopkins Hospital, the University of Maryland Medical Center and the Greater Baltimore Medical Center, said they employ both male and female OB-GYNs.