Last week we discussed disparate impact vs. direct mistreatment in sex and gender discrimination cases, and we lightly touched on the idea of a bona fide occupational qualification (BFOQ). This week, we’ll explain a little more about BFOQs and how companies are able to limit job openings in certain circumstances.
In normal situations, employers are not allowed to base hiring decisions on race, sex, age, national origin or other protected characteristics; to do so would violate Title VII of the Civil Rights Act of 1964. Under the Bona Fide Occupational Qualifications rule, however, Title VII does not apply.
In order to establish the defense of a BFOQ, the employer must prove that the hiring requirement is necessary to the success of the business and that a definable class of employee would be unable to perform the job safely and efficiently. Here are some examples of BDOQ’s:
- Requiring airline pilots and bus drivers to retire at a certain age;
- Members of the clergy requiring applicants to adhere to a specific faith;
- The use of models and actors for authenticity in scenes, acts or locales; likewise, hiring only male or only female models to promote clothing;
- Requiring emergency personnel to be bilingual.
Atkerson Law – Dallas Employment Law Attorney