Bona Fide Occupational Qualifications

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 What is a Protected Class?

When an individual is dealing with a situation which involves an anti-discrimination lawsuit, they are likely to hear the term protected class, or protected group. Many individuals may not know exactly what this term means but it is a relatively simple concept.

A protected class is a group of individuals who qualify for certain special protections under a policy or a law. One example of an anti-discrimination law which protects certain groups of individuals is the Civil Rights Act of 1964.

Pursuant to this act as well as other federal anti-discrimination laws, for example, the Age Discrimination in Employment Act and the Americans with Disabilities Act, an individual cannot be discriminated against based on certain characteristics, including:

  • Age;
  • Race;
  • National origin;
  • Religious beliefs;
  • Gender ;
  • Disability;
  • Pregnancy; and
  • Veteran status.

The Civil Rights Act also created the Equal Employment Opportunity Commission, typically referred to as the EEOC. The EEOC is the federal agency which oversees the enforcement of the Civil Rights Act as well as other federal anti-discrimination laws as they apply to employment.

Although the classes listed above are federally protected classes, there are many states which also have their own anti-discrimination laws and policies which may be broader than the federal statutes. This means that the laws of a state may protect more individuals than the federal laws do.

For example, some state laws also protect individuals on the basis of their:

  • Gender identity;
  • Sexual orientation;
  • Political ideology; and
  • Service in a state militia.

It is important to note that while state laws may provide more protections than federal laws, they cannot provide fewer protections than federal laws. A private employer may also have policies in place to protect their employees from harassment or discrimination in the workplace based upon certain statuses, including:

  • Marital status;
  • Gender; or
  • Sexual orientation.

What are Examples of Discrimination Against Protected Classes?

An individual may have read about discrimination cases or heard about anti-discrimination laws in the news but may now know exactly what counts as discrimination. Discrimination may take many forms, including:

  • Harassment;
  • Racial slurs;
  • Derogatory remarks;
  • Unwanted personal attention; or
  • Unwanted touching.

Examples of discrimination may also include:

  • An individual being denied a marriage license when they attempt to marry a person of the same gender;
  • A registered voter being treated differently from other voters at a polling place because of their:
    • appearance;
    • race; or
    • national origin;
  • An employee over the age of 40 being denied a promotion at work due to their age, despite being fully qualified for the job; or
  • An employee is subjected to harassment or teasing at their workplace due to their gender.

What is not Considered a Protected Class?

Although discrimination may exist in all types of groups, not every group of individuals is a protected class under the law. If an individual is not a member of a protected class, unfortunately, they may not be protected under state or federal anti-discrimination laws.

For example, groups which are not considered to be protected classes include:

It may be possible for an individual to discriminate against another individual because of their education level or their criminal record. Because the categories are not included in protected classes under the law, however, they may not qualify for certain protections under anti-discrimination laws.

Not every instance of unfair treatment is necessarily a violation of the law.

What are Bona Fide Occupational Qualifications?

Although the Civil Rights Act of 1964 prohibits discrimination in employment practices, bona fide occupational qualifications (BFOQ) are one exception. BFOQs are characteristics or traits which allow an employer to hire an individual on the basis of, but only if they are reasonably necessary for the business or organization.

Examples of BFOQs may include:

  • Religion;
  • Sex;
  • Age; and
  • National origin.

For example, Catholic schools may choose to only hire teachers and other faculty members who are of the Catholic faith. Another example may be a menswear clothing company that only hires male models to model the clothing line.

How can a Bona Fide Occupational Qualification Apply when Requiring English-Speaking Employees?

If an employer requires employees to speak English, they must prove that barring non-English languages in the workplace is necessary for the business to function. For example, if a store sells items to English-speaking customers, it may require that its sales clerks speak English exclusively.

Another example is telemarketers who answer phone calls from English-speaking customers should be able to speak English to understand and respond to the customer’s questions and complaints.

How can an Employer Use a Bona Fide Occupational Qualification as a Defense?

If an employer is charged with a discriminatory employment or hiring practices claim, they may attempt to use a bonafide occupational qualification as a defense. A court will examine this type of defense extremely closely.

Because of this, the employer will be required to demonstrate and prove the validity of the BFOQ.

Because BFOQs are narrowly interpreted, an employer is required to:

  • Show a business necessity for the BFOQ;
  • Demonstrate that the necessity can be verified and is rational;
  • Prove the rationality stems from a substantial belief that almost all of all employees who are not in the suspect class do not possess the necessary 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.

What about a Bona Fide Occupational Qualification for Safety Reasons?

In some cases, safety reasons may be considered a BFOQ for a defense for an employer against an employment discrimination claim. For example, there are mandatory requirement ages for airline pilots due to safety reasons.

In order to prove that a BFOQ is a necessity, an employer is required to demonstrate how it meets the goal and that there is not a better alternative with a less discriminatory impact.

  • Common BFOQs may include being:
  • Able to lift a certain amount of weight, for example, to be able to lift 30 pounds;
  • Able to sit for multiple hours at a time at a desk or in a chair; or
  • Able to stand for hours at a time.

These qualifications are common requirements for positions such as a food server or an office position.

Are there Any Limitations to Bona Fide Occupational Qualifications?

Yes, there are limitations to bona fide occupational qualifications. For example, an employer cannot arbitrarily discriminate against an individual based upon assumptions or an unproven fact. For example, an employer cannot choose to only hire males because of the stereotypical belief that they are more aggressive than females.

The same concept applies to customer or coworker preferences. A hiring decision cannot be based on preferences unless a valid safety concern exists.

Do I Need a Lawyer for a Bona Fide Occupational Qualification Defense?

If there has been an employment action taken against you which you believe is discriminatory, it may be helpful to consult with a discrimination lawyer. If you are an employer and are facing a discrimination claim, it may be helpful to consult with an attorney to determine if you have a bona fide occupational qualification defense.

Employment laws are numerous and complex. Having a lawyer on your case can help ensure your success. In addition, if you are an employer, it may be helpful to consult with a lawyer prior to making decisions related to employees to ensure that your actions will not be considered discriminatory.

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