Bona Fide Occupational Qualifications
What are Bona Fide Occupational Qualifications
While the Civil Rights Act of 1964 prohibits general discrimination in hiring and employment practices, it does allow for hiring and employing individuals on the basis of religion, sex, age, and national origin if these characteristics or traits are bona fide occupational qualifications (BFOQ) reasonably necessary for the particular business or organization.
BFOQ as an Affirmative Defense
If an employer is charged with discriminatory hiring or employment practices, a bona fide occupational qualification can be used as a defense to the discrimination claim. However, in all situations a BFOQ is interpreted narrowly and the employer must successfully demonstrate its validity.
Proving a BFOQ
To prove the validity of a bona fide occupational qualification, the employer must:
- show that the BFOQ is necessary to the business,
- demonstrate that it's necessity is established by a verifiable, rational basis,
- prove that the rational basis is rooted in a substantial belief that all, or nearly all, employees who are not members of the suspect class do not have the qualifications for the position, and
- demonstrate that this belief can either be proven, through appropriate tests if necessary, or that it would be impossible or impracticable to "deal with all of the excluded class," as validated by expert testimony or generally accepted research and data.
BFOQ for Safety Reasons
An employer may also assert a BFOQ for reasons of public safety. To prove its necessity, the employer would need to show how it meets the goal and that there is no better alternative with less discriminatory impact.
Limitations to BFOQs
Bona Fide Occupational Qualifications cannot be based on arbitrary, unproven bases or on assumptions. For instance, employers cannot select only women because of some stereotypical belief that women are more nurturing or select only men because they are considered to be more aggressive. An employer also cannot make hiring decisions based on co-worker or customer preferences unless there are valid safety concerns.
When Would I Need an Attorney to Assert a Bona Fide Occupational Qualification Defense?
If you are an employee who has been denied work because of a particular occupational requirement that you feel is discriminatory, you should speak with an employment attorney immediately. If you are employer being sued for discrimination, you should speak to an attorney to learn whether you have a bona fide occupational qualification defense.
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Last Modified: 01-13-2012 04:35 PM PST