Bona Fide Occupational Qualification (BFOQ)

Bona Fide occupational qualification (BFOQ) according to U.S. laws: Requirement that an employee be of a certain religion, sex, or national origin where that is reasonably necessary to the organization’s normal operation. Specified by the 1964 Civil Rights Act

An employer can claim that the employment practice is a bona fide occupational qualification (BFOQ) for performing the job. This is prescribed in the law. Title VII provides that it should not be an unlawful employment practice fir an employer to hire an employee on the basis of 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.

However, courts usually interpret the BFOQ exception narrowly. It is almost always a defense to a disparate treatment case based upon direct evidence of intentional discrimination, and not to disparate impact (unintentional) discrimination. As a practical matter, employers use it mostly as a defense against charges of intentional discrimination based on age.

Age as a BFOQ: The Age Discrimination in Employment Act (ADEA) permits disparate treatment in those instances when age is a BFOQ. For example, age is a BFOQ. For example, age is a BFOQ when federal requirements impose a compulsory age limit, such as when the Federal, Aviation Agency set a ceiling of age 65 for pilots. Actors required for youthful or elderly roles or persons used to advertise or promote the sales of products designed for youthful or elderly consumers suggest other instances when age may be a BFOQ. However, courts set the bar high: The reasons for the age limit go to the essence of the business. A court said a bus line’s maximum age hiring policy for bus drivers was a BFOQ. The court said the essence of the business was safe transportation of passengers and given that, the employer could strive to employ the most qualified persons available.

Employers using the BFOQ defense admit they base their personnel decisions on age, but seek to justify them by showing that the decisions were reasonably necessary to normal business operations (for instance, the bus line arguing its maximum age driver requirement is necessary for safety). Alternatively, an employer may raise the FOA (factors other than age) defense. Here one argues that its actions were “reasonable” based on some factor other than age, such as the terminated person’s poor performance.

Religion as a BFOQ: Religion may be a BFOQ in the case of religious organizations or societies that require employees to share their particular religion. For example, religion may be a BFOQ when hiring persons to teach in a denominational school. However, remember courts construe the BFOQ defense very narrowly.

Gender as a BFOQ: Gender may be a BFOA for positions like actor, model, and rest room attendant requiring physical characteristics necessarily possessed by one sex. However, for most jobs toady, it’s difficult to claim that gender is a BFOQ. For example, gender is not a BFOQ for parole and probation officers. It is not a BFOQ for positions just because the positions require lifting heavy objects.

National Origin as a BFOQ: A person’s, country of national origin may be a BFOQ. For example, an employer who is running the Chinese pavilion at a fair might claim that Chinese heritage is a BFOQ for persons to deal with the public.

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