Even though the Civil Rights Act of 1964 prohibits discrimination in employment practices, bona fide occupational qualifications (BFOQ) are an exception. BFOQs are traits or characteristics that allow an employer to hire individuals on the basis of religion, sex, age, and national origin, only if they are reasonably necessary for that business or organization.
For example, a Catholic school may choose to only hire teachers who are of the Catholic faith. Another instance would be a menswear clothing company only hiring male models to model its clothing line.
How to Use a Bona Fide Occupational Qualification as a Defense
If charged with a discriminatory hiring or employment practices claim, an employer may attempt to use a bona fide occupational qualification as a defense. The court will examine this type of defense very closely; as such, the employer must demonstrate and prove its validity.
Since BFOQs are narrowly interpreted, the employer must be able to:
- Show a business necessity for the BFOQ;
- Demonstrate that the necessity is rational and can be verified;
- Prove the rationality stems from a substantial belief that all or almost all of the employees not in the suspect class do not possess the qualifications for the job; and
- Show that this belief can either be proven or disproven with appropriate tests, or that dealing with the entire excluded class would not be feasible as shown by expert testimony or widely accepted research and data.
A Bona Fide Occupational Qualification for Safety Reasons
Safety reasons may also be BFOQs for an employer’s defense against employment discrimination. For instance, there are mandatory retirement ages for airline pilots because of safety reasons. To prove a BFOQ necessity, the employer must demonstrate how it meets the goal, without a better alternative and less discriminatory impact.
Some common BFOQ’s are:
- Able to lift a certain amount of weight (ex: able to lift 30 lbs);
- Able to sit for hours at a time at a desk; or
- Able to stand for hours at a time.
These qualifications are common requirements for an office position or a food server.
Are there Any Limitations to Bona Fide Occupational Qualifications?
Employers cannot arbitrarily discriminate against anyone based on assumptions or unproven bases. For instance, an employer cannot choose to only hire men because of the stereotypical belief that they are more aggressive. The same goes for coworker or customer preferences; hiring decisions cannot be based on preferences unless valid safety concerns exist.
Do I Need a Lawyer for a Bona Fide Occupational Qualification Defense?
If an employment action has been taken against you that you believe is discriminatory, contact an employment attorney immediately. If you are an employer who is facing a discrimination claim, you should also speak to an employment attorney with help on determining whether you have a bona fide occupational qualification defense. Employment law can be complex, and having an experienced lawyer in your corner can make a difference in how your case will fare.