Employers want to please customers and do not want to discriminate against employees. Sometimes achieving both goals is a management challenge, because customers are not always model citizens.

Customer conduct directed against employees can lead to “hostile work environment” liability. For instance, a waitress won a lawsuit where, despite her complaints, her supervisor continued to require her to serve customers who made sex-related comments and even pulled her hair.

Customer preferences can likewise create problems. At a Pennsylvania hospital, the racist father of a newborn baby had insisted that no African-Americans enter a maternity patient’s room, so supervisors told African-American employees to stay out of the room. The hospital was chastised by the news media and civil rights organizations. In response to the public outcry, the hospital issued a public letter of apology, disciplined the supervisors involved, and created a new diversity task force.

A Louisiana automobile dealership demoted its parts manager after losing a key customer who, before taking his business elsewhere, said: “I’d rather have a man I could work with.” The dealership put a male in charge of the parts department and won back the customer, but also acquired a sex discrimination lawsuit.

A female sales representative sued after being removed from an account. Her supervisor thought that a “guy” would be able to take the male customer representative out drinking and that this was the key to getting his business.

A male Filipino sales associate sued a Manhattan jewelry store for sex and national origin discrimination. After he complained that a blonde female sales associate had stolen one of his male customers, his supervisor retorted: “Oh, [the customer]’s Russian and Russian men like to flirt with pretty [blondes].”

Companies sometimes face “no win” choices. If an out-of-town visiting male customer insists on a salesman who will take him out drinking and to strip clubs, should the company assign a male to get the business, assign a female who is more likely to find this assignment intolerable, or simply refuse the customer’s demand? Assigning a male employee to perform such duties may not be an “adverse employment action” sufficient to trigger liability when a disgruntled female employee sues, but how many companies are willing to take this risk?

Under rare circumstances, customer preferences can make an employee’s sex a “bona fide occupational qualification” (“BFOQ”). Examples can include health care professionals giving baths to elderly patients, working in labor and delivery, or performing catheterizations – particularly if patients in these circumstances object to caregivers of the opposite sex. Other valid BFOQ examples include janitors assigned to clean restrooms (where restrooms cannot be closed during cleaning), security guards assigned to perform strip searches, and child care specialists working with victims of abuse. However, courts have rejected sex as a BFOQ for massage therapists and weight-loss counselors, stating that customer preferences in these areas do not involve fundamental privacy rights.

Race – unlike sex, religion, national origin, or age – is never a permissible BFOQ. At best, race may be considered in rare cases such as casting actors in an historical drama.