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Hiring Discrimination May Be OK With a BFOQ

By Brett Snider, Esq. | Last updated on

For a small business, hiring discrimination sounds like an easy way to get sued. But in some cases, it may be perfectly legal.

Businesses may discriminate in hiring if they can prove that the position requires a bona fide occupational qualification (BFOQ).

This exception to discriminating based on gender, religion, and age has been narrowly carved out by case law, as illuminated in these three types of jobs:

1. Wet Nurse.

When a childcare business seeks to hire a wet nurse, the business is looking for a woman who can breastfeed and care for a child. However, under Title VII of the Civil Rights Act of 1964, businesses typically cannot discriminate based on gender -- except when the position requires a BFOQ.

The ability to breastfeed is a BFOQ because it is not based on merely a stereotype between males and females, it really is a job that can only be performed by a woman.

Contrast this with a business like Hooters restaurants. Consistent court losses have shown that breasts are not a legal BFOQ for a restaurant server, possibly just an advantage.

2. Teacher at a Religious School.

If a religious school wants to hire someone who adheres to their school's stated beliefs, it may do so without violating Title VII.

Even if your business is not considered a religious organization under Title VII, you may be able to make religion a BFOQ if religious affiliation or belief is reasonably necessary to perform the job. Courts, however, view this exception as very narrow.

For example, courts have allowed Jesuit schools to hire only Jesuit teachers due to the particular history and requirements of the Jesuit order, not solely on the basis of their Christian faith.

3. Inner-city Bus Driver.

Business owners are prohibited from discriminating against an employee based on age under the Age Discrimination in Employment Act (ADEA), so long as the employee or job applicant is 40 years or older.

However, a company can use age limits as BFOQs if they are reasonably necessary for the position and either:

  • All or most persons disqualified can't do the job; or
  • Age is used as a proxy for safety-related job qualifications that are "impossible or highly impractical" to judge on a case-by-case basis

For example, courts have denied these limits when it comes to age limits for flight engineers -- but narrowly allowed these limits for inner-city bus drivers.

As you can see, hiring discrimination and BFOQs can get complicated. That's why you may want to consult an experienced employment lawyer to get advice about your specific situation.

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