A “Bona Fide Occupational Qualification” (BFOQ) refers to a quality or attribute that employers are legally allowed to take into account when making hiring and employment decisions. If considered in other formats, these qualities would be classified as discrimination and would be in violation of Title VII of the Civil Rights Act of 1964 and California’s Fair Employment and Housing Act (FEHA).
The BFOQ defense is narrowly construed to ensure that employers do not take advantage of this exception to defend their discriminatory practices. It is limited specifically to hiring and employing, which does not allow employers to defend discrimination in regards to compensations, terms, or privileges of employment. Also, while Title VII does not allow for racial discrimination to qualify as a BFOQ, the California FEHA does allow for any of its protected classes to be discriminated against for a BFOQ, including race.
In order for an employer to establish a BFOQ defense in accordance with Title VII and FEHA, they must prove that the characteristic is directly related to the ability to perform the job duties and the qualifications relates to the “essence” or “central mission” of the employer’s business. In order to show that the characteristic is directly related to the ability to perform the job, an employer must show that all or substantially all members of the excluded class cannot perform the job requirements safely or effectively.
An employer must also prove that the qualification is related to the essence of the business by showing that the protected class has a characteristic that would have a negative impact on the central mission of the business. For example, a female prison may require female prison guards since providing a living environment free of males in positions of authority encourages the rehabilitation of the inmates and is therefore necessary to the central mission of the business.
Factors That Determine the Eligibility of a Bona Fide Occupational Qualification
There are several factors that determine whether a qualification is actually a “bona fide” one. The first of these factors is safety concerns. Accordingly, any qualification that is designed to protect either the employee or third parties are valid to the extent that the qualification relates to the employee’s ability to do their job. For example, gender discrimination is permitted only if it is shown that sex or pregnancy actually interferes with an employee’s ability to do their job.
The second factor taken into account is privacy concerns. Looking back at our female prison example, the female inmates have the right to not be seen by a member of the opposite sex, and thus the prison guard position may legally be restricted to females.
The third factor is a business’s need for a role model. An employer’s need for employees who act as role models for their customers or clientele may be used as a BFOQ. An example of this was seen in Chambers v. Omaha Girls Club, Inc. in which a judge upheld the club’s policy of not employing unmarried persons who became pregnant or caused pregnancy since they didn’t qualify as role models under their policy.
The last factor taken into account is religious membership. A place of worship or school related to a religion may require its employees to be members of that religion if it is necessary to the normal operation of that particular business.
Determining whether there is a legal bona fide occupational qualification is imperative in determining whether an applicant or employee has been discriminated against legally or illegally. If you believe your employer has discriminated against you and is claiming to be doing so due to a bona fide occupational qualification, you should consult an employment attorney to learn your rights.
Source: Yadegar, Minoofar & Soleymani LLP