BFOQ information
Bona Fide Occupational Qualification (BFOQ)
The following is provided as guidance and is not intended to have the force of law. For questions regarding this material please contact Erik Aamoth at 651.259.7504.
A BFOQ is a legal exception to an otherwise discriminatory hiring practice that is "reasonably necessary to the normal operation of a particular business." The BFOQ may be requested if "the essence of the business operation would be undermined if the business eliminated its discriminatory policy." Note that allowing a company to hire employees based on their religion, gender, or national origin where those factors are reasonably necessary to the normal operation of that particular business or enterprise does not permit religion-based, gender-based or national origin-based differences in pay to those holding the same job. With a BFOQ the burden of proof always lies with the employer.
Three principles to keep in mind if an employer is requesting a BFOQ.
1. Essence
* Applies only to qualifications that affect employee's ability to perform job
* Romantic paternalism not allowed (for example denies women jobs that are dirty, dangerous, strenuous, but higher paying).
* Cannot argue BFOQ for customer preference.
* Authenticity (e.g. Male models).
2. All or substantially all persons of class cannot perform essential duties job duties.
3. Third party risk (e.g. Pregnant workers judged individually, not as class).
RACE: The law specifically states that it is unlawful to discriminate on the basis of religion, gender, or national origin, except where any of these factors is "a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise." However, the law says that race can NEVER be a bona fide occupational qualification.
RELIGION: Besides the exemptions given religious organizations and educational organizations directed toward the propagation of a particular religion, religion could be considered a bona fide occupational qualification when membership in a certain religion is reasonably necessary to the performance of a job. For example, a company selling religious articles or books might be allowed to insist on hiring sales people of the particular religion involved. But the company could not refuse to hire a janitor because of his religion, as it would not be "reasonably necessary" to the operation of the business. (Note: This is a hypothetical example only. It would be very unusual for religion to be a BFOQ for any job outside a religious organization.)
GENDER: The gender as a bona fide occupational qualification causes more difficulty than any of the other provisions of this section of the law. Various state laws limiting the jobs women are allowed to do and regulating their wages and hours are now largely invalidated because they were based, in large part, on the traditional separation of "man's work and woman's work." On several occasions, the Equal Employment Opportunity Commission has said it will take a very narrow view of this exemption. According to its guidelines, the following factors are not considered valid reasons for establishing a BFOQ based on gender:
* Assumptions about employment characteristics of women in general, such as the assumption that women have a higher turnover rate
* Stereotyped opinions about the genders, such as the belief that women are better at assembling intricate equipment but not as good at aggressive selling
* The assumption that a particular group of employers, employees, clients, or customers prefer working only with men or women.
Women applicants and employees must be judged on the basis of their individual abilities. You cannot refuse to hire or promote a woman just because most women or women in general cannot do the job. It's unlawful, for instance, to classify jobs as "light" and "heavy" and to exclude women from the heavy jobs. The employer has to decide whether an applicant or employee, male or female, is individually capable of doing the work.
AGE: The Age Discrimination in Employment Act (ADEA) prohibits employers from discriminating against workers who are 40 years of age or older. The purpose of the Act is to promote the employment of older workers based on their ability rather than their age, to prohibit arbitrary age discrimination in employment, and to help employers and workers find ways of resolving problems arising from the impact of age on employment. The Act does not protect under-40 employees from age discrimination in the workplace.
According to the ADEA, the following three elements must be met to establish a BFOQ.
1. The age limit is reasonably necessary to the essence of the business.
2. All or substantially all individuals excluded from the job because of age are not able to perform it safely or efficiently.
3. Some of the individuals excluded possess a disqualifying trait or susceptibility that cannot be explained except by the use of an age-based qualification.
4. There is a legal age requirement to perform that type of work. (For example, commercial truck drivers who cross state lines must be at least 21 years old, but the impact on insurance rates does not constitute a BFOQ for raising the age to 25.)
