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Bona Fide Occupational Qualifications

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The Bona Fide Occupational Qualification, or BFOQ for short, is an affirmative defense to discrimination claims found in Title VII of the Civil Rights Act of 1964. The BFOQ is essentially a legal form of discrimination in employment law. While Title VII only applies to individuals discriminated against on the basis of race, color, religion, gender, or national origin, other laws such as the Americans With Disabilities Act and the Age Discrimination in Employment Act, prevent discrimination against other classes of citizens.

Definition[edit]

Title VII reads:

It shall be an unlawful employment practice for an employer—(1) to fail or refuse to hire or to discharge any individual, or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.
—42 U.S.C. § 2000(e)

The BFOQ passage states:

It shall not be an unlawful employment practice for an employer to hire and employ employees . . . on the basis of his religion, sex, or national origin in those certain instances where religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise.
—42 U.S.C. § 2000(e)-2(e)(1)

It is important to note that Congress deliberately excluded "race" as a category that qualified for a BFOQ defense because adding "race" would undermine the entire purpose of enacting Title VII.[1]

In order for a business to establish that it is entitled to a BFOQ defense, the United States Supreme Court has stated: "The statute thus limits the situations in which discrimination is permissible in ‘certain instances’ where sex discrimination is ‘reasonably necessary’ to the ‘normal operation’ of the ‘particular’ business. Each one of these terms— certain, normal, particular—prevents the use of general subjective standards and favors an objective, verifiable requirement. But the most telling term is “occupational”; this indicates that these objective, verifiable requirements must concern job-related skills and aptitudes."[2]

BFOQ differs from regular discrimination in that there is a certain rationality to its application in the business world, whereas regular discrimination is often based on other, less reasonable factors, such as fear and ignorance.

Obvious examples (in the United States)[edit]

A social club featuring female exotic dancers and catering to a primarily heterosexual male clientele can legally reject the application of a man to be an exotic dancer based solely on the fact that he is male and lacks the necessary physical traits. Similarly, the same club could legally reject a homely or obese woman if they felt that hiring her would turn away business.

A Catholic church would likely not allow a Jewish man to conduct services, and they are legally allowed to reject one who would apply, though this particular protection derives also from the First Amendment: the Supreme Court has consistently held that the government cannot force a religious organization to accept a person as a minister if they do not wish to. Similarly, they can legally turn away someone who does not share their faith or is not a member of their church, even if the position has nothing to do with their beliefs, such as an atheist applying to be a janitor, on the grounds of exemption as a religious organization. This protection does not arise from the First Amendment, but rather from statutory language regarding bona fide occupational qualifications, as discussed here.

Less obvious examples[edit]

Applicants for jobs as airline pilots and bus drivers who are over a certain age can be rejected, and existing employees can be forced into retirement when they hit that age, due to safety concerns.

Certain private clubs, such as Masonic lodges and golf course communities, can require that their employees be members or residents of those clubs or communities.

A restaurant can legally reject the application of someone who requires a wheelchair for a position as a waiter or dishwasher, simply because the person would be unable to perform the basic functions of the position. It sounds mean, but it's the truth. The same restaurant, however, could find themselves in trouble if they reject the same individual's application for the open position of bookkeeper on the sole grounds that they are in a wheelchair.

A company could legally reject the application of someone whose beliefs forbid them to perform the essential job functions. A Sikh applying for a job in construction but asking to be exempt from wearing a hard hat (because it would interfere with his turban) can be rejected solely on those grounds, as it would be a grievous liability to allow the exemption.

Not BFOQ[edit]

Court measures in the 1970s and 1980s rejected the assertion of airlines to reject any male's application to be a flight attendant. The airlines could not provide a plausible enough argument that a woman provided better customer service or comfort than a man could, or that a man in the same position would decrease business or detract from the customer's experience.[3]

Hooters Restaurant has settled multiple lawsuits out of court for refusing to hire men as waiters.[4] It is likely that if a case for sex discrimination were to reach the trial stage in court, the court would find that Hooters' requirement of being female in order to be a server was not a BFOQ because it cannot establish that the position requires one to be female in order to perform the job. Hooters and restaurants with similar hiring practices, such as Earle's and The Tilted Kilt, tend to steer male applicants to other positions, such as bartenders or back-of-the-house. However, these establishments are still discriminating for the hiring of individuals for the server position.

See also[edit]

References[edit]

  1. 110 Cong. Rec. 2556 (1964)
  2. Int'l Union, United Auto., Aerospace, and Agric. Implement Workers of Am. v. Johnson Controls, Inc. 499 U.S. 187, 201(1991)
  3. Diaz v. Pan Am. World Airways, Inc., 422 F.2d 385 (5th Cir. 1971).
  4. See Latuga v. Hooters, Inc., No. 93 C 7709, 94 C6338, 1996 WL 164427, at *1 (N.D. Ill. Mar. 29, 1996)