Bona Fide Occupational Qualification

United States law prohibits employment decisions based on an applicant's race, religion, gender, national origin, age, or other protected status. In some cases, the normal operation of the business forces employers into uncomfortable decisions. What should a small-business owner do when hiring a worker of a particular gender or religion?

The Equal Employment Opportunity Commission (EEOC) and federal law prohibit discriminatory hiring practices. Employers cannot list a job "for men only" or even "must be able to work weekends" (which discriminates against religious people). There are a few special situations when an employer may exclude members of a protected class or only hire individuals of a particular group.

The bona fide occupational qualification exception (BFOQ) is very narrowly tailored. The EEOC only permits employers to claim the exception if they show business necessity. This article examines the rule and why few small businesses can qualify.

The Bona Fide Occupational Qualification Exception: Overview

Title VII of the Civil Rights Act of 1964 prohibits discrimination in employment practices. Employers may not discriminate against otherwise qualified candidates based on race, religion, gender or gender preference, or national origin. This applies to private and government businesses with almost no exceptions. When a rejected employee makes a discrimination claim, it is because they belong to one of these protected classes.

The BFOQ exception allows employers to prove that they must exclude one or more protected classes because they need a particular employee instead. These exceptions must be narrowly tailored, and the burden of proof is on the employer to show the need for the exclusion.

The EEOC has provided guidance based on case law and a thorough examination of the explanations given by employers for BFOQ exceptions based on national origin, religion, and gender. In general, to claim a BFOQ exception, employers must:

• Show that the essence of the business would be undermined if the EEOC did not grant the requested exception. The essence of the business must be unique and need individuals of the group and no other. The classic example is a Catholic church seeking a new clergy member.
• Determine whether individuals outside the group have performed the job. For instance, suppose your French restaurant hires only French-born chefs for an authentic flavor. You must determine if other chefs could create the same authentic taste.
• Demonstrate that any desired traits in one group are essential to job performance and business necessity.

Privacy vs. Contact and Customer Preference

Religious discrimination is the easiest way to describe the BFOQ exception. But, most case law is in the gender discrimination field. The many exception requests shot down by the EEOC have included:

• Women can't do the work/too hard/too much lifting.
• Work is too dangerous/unpleasant/other workers swear too much for women.
• Customers want a woman waitress/flight attendant/clerk.
• It takes too much time/money to find qualified female workers.

The EEOC makes it clear that what customers find appealing in an employee cannot be part of the job description. Suppose some applicants cannot perform a task, such as lifting 50 pounds. In that case, the hiring process cannot exclude all protected class members unless the employer shows that every member cannot lift 50 pounds with or without reasonable accommodation.

Within this subsection, a smaller subsection exists for those in institutional settings. Unlike shop customers who may choose to go elsewhere, residents of nursing homes and prison inmates cannot leave, so their opinions matter.

"Privacy" means whether the employees can observe the residents or whether they have personal spaces. "Contact" refers to whether staff must touch the residents for any reason.

Although, in theory, any person acting in good faith can carry out any task on any other person, the reality is that some people cannot or will not accept physical contact from members of the opposite sex. Or, in some circumstances, it may not be safe to permit such contact. In these cases, job applicants cannot have these particular jobs.

In one instance, a male nurse filed a discrimination lawsuit against a retirement home. He claimed he was not hired based on gender discrimination. At trial, the home's owner showed that 22 of 30 residents were female, and most would not consent to physical contact by a man. The small size of the staff meant the owner could not keep a female nurse on the property full time. This particular business received a BFOQ exception.

Other Occupational Exceptions

The Age Discrimination in Employment Act (ADEA) prevents discrimination against people over 40 in hiring. In 1978, an amendment prohibited mandatory retirement before age 70 in most occupations. The BFOQ exceptions permit some earlier mandatory requirements where there is an industry showing of health and safety concerns.

Airline pilots, military, and police have a mandatory retirement age because of safety concerns.

BFOQ or Discrimination? Get Help From an Attorney

Before claiming BFOQ, employers and small-business owners should get legal advice from an employment law attorney. Your state may have other laws, and you should be sure you follow all job requirements rules.