Interpretation's Date: May 1, 2001
by superintendent David Stewart
Section: V. Personnel
SubSection: C. Service Personnel



May 1, 2001

Dr. James B. Phares
Pocahontas County Schools
926 Fifth Avenue
Marlinton, WV 24954

Dear Dr. Phares:

I am in receipt of your request for a Superintendent's Interpretation which was dated April 26, 2001. You stated that an autistic male child in your county is currently receiving services with one-on-one supervision and with guidance from the autism center in Huntington. The child is now approaching middle school age and has grown substantially in the last year. The mother of the child is now requesting the services of a male aide to provide personal care services.

You have asked the following questions:

1. Is it a violation of the Equal Opportunity Act if a job description is written with only male applicants being accepted as candidates?

In West Virginia, the law recognizes the exception of bona fide occupational qualifications in employment discrimination type claims in §5-11-9 of the West Virginia Code. Generally, employment in a particular job may not be limited to persons of a particular sex, religion, or national origin unless the employer can show that sex, religion, or national origin is an actual qualification for performing the job.

The West Virginia Education and State Employees Grievance Board has held that gender is a bona fide occupational qualification for an aide position which requires attending to the intimate personal care needs of an adolescent boy. Paula Shahan, et al., v. Preston County Board of Education, Docket No. 92-39-213 (December 29, 1992); Kimberly Sall v. Wood County Board of Education, Docket No. 54-86-311-3 (March 20, 1987). In reaching this determination, the Administrative Law Judge in the Shahan case considered the child's Individualized Education Program, the recommendations of the Placement Advisory Committee, the wishes of the child's parents, and a recommendation from a community mental health center.

James B. Phares
May 1, 2001
Page 2

Accordingly, if gender is a bona fide occupational qualification for a particular job, the job posting can permissibly reflect the need for an applicant with that qualification. The posting should describe the required job duties as specifically as possible, without disclosing any confidential information about students, so that the qualification is adequately justified.

2. Do personnel who are currently employed with seniority and/or affected by a reduction in force have a right to file a grievance if they are candidates for the position?

Any employee who believes that he or she has been negatively affected by an employment decision may file a grievance in accordance with West Virginia Code Section 18-29-1 et seq. An employee's right to file a grievance is not tied to the merits of his or her claim.

3. Is there any violation of due process and/or State Board Policy 2419 if a male aide is not employed to provide personal care services noting that currently this child is receiving one-on-one supervision involving personal care services?

Policy 2419 does not contain any provision specifically mandating that personal care services be provided by aides who are the same gender as the students requiring services. However, section 6.1 of Policy 2419 does require that each public agency provide the special education and related services necessary to implement each child's Individualized Education Program (IEP). Section 6.1.3 goes on to provide that each public agency shall provide qualified personnel with the training and skills necessary to implement the IEP of each student assigned to them. Thus, if the IEP recognizes that a student would benefit from the services of a same sex aide, then the agency should make every attempt to meet this need while necessarily recognizing that there might not be one applicant who meets all criteria set forth in the ultimate job posting. In other words, there might not be a male aide who applies for the position in question. In such an instance, it is necessary to remember that continuity of services for autistic children is of paramount importance in making any related personnel decisions.

Hoping that I have been of service, I am



David Stewart
State Superintendent of Schools
c: Roger L. Trusler, Director, Special Education 48003

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