A bona fide occupational qualification (BFOQ) is a limited exception under US law to the general rule against discrimination in the workplace. It allows an employer to take into account a person’s sex, religion, national origin, or age when making an employment-related decision, for example during the hiring process.
An employer can use a BFOQ as a defense against a discrimination claim. However, BFOQs only apply in limited circumstances where the qualification relates to an essential duty of the job and is necessary for the operation of the employer’s business.
The equivalent of a BFOQ in Canada is a bona fide occupational requirement and in the UK, a genuine occupational qualification.
Why is it important to understand BFOQs?
Your organization’s employment practices, including hiring and termination, must comply with the relevant employment law protecting employees from discrimination. If you try to use a BFOQ incorrectly, you could face a discrimination lawsuit.
Aside from being the law, understanding BFOQs and their limited application ensures the creation of a fair workplace with equal access to opportunities.
Title VII of the Civil Rights Act (1964) prohibits discrimination based on race, color, religion, sex, or national origin. This prohibition applies to all employment processes, including hiring, compensation, termination, promotion, access to training, and benefits.
Title VII also provides an exception to this general rule for rare situations where religion, sex, or national origin are “reasonably necessary to carrying out a particular job function in the normal operation of an employer’s business or enterprise” (42 US code § 2000e-2).
Race or color are not BFOQs—there is never a legal justification for taking these factors into account when making employment decisions.
BFOQs are limited in their application. They’re not intended to be interpreted more broadly to justify discrimination. The Civil Rights Act emphasizes that BFOQs only arise in “extremely rare instances”. Various courts have reinforced this, stating they only apply to “unique situations”.
The Age Discrimination in Employment Act (1967) also provides a BFOQ, allowing employers to discriminate based on age where it’s “reasonably necessary to the normal operation of the particular business” (29 U.S. Code § 623).
How does a BFOQ exception apply?
A BFOQ is an affirmative defense. If an employer wants to rely on it, they have to prove it.
To justify a BFOQ exception, an employer must show that:
- The characteristic relates directly to the individual’s ability to do the job. This involves demonstrating that all or almost all members of the excluded class cannot perform the job safely or effectively.
- The qualification relates to the “essence” or “central mission” of the employer’s business.
These justifications cannot be based on stereotypes, generalizations, or assumptions.
Simply because a particular approach to hiring makes business sense—for example, hiring only young female shop assistants based on customer preferences and rejecting male or older applicants—doesn’t justify a BFOQ. The characteristic must be essential to performing the functions of the job.
If you’re considering applying a BFOQ exception to a role, you should seek legal advice and document your reasoning in detail.
Examples of valid BFOQ exceptions
Situations where a lawful BFOQ has been found to exist include:
- A clothing store exclusively hiring females to model their women’s wear for their website (however, only hiring females to work in the store would not be a BFOQ, as both sexes could perform customer service roles)
- A church requiring their priests to be Catholic (however, requiring a church janitor to be Catholic is not a BFOQ, as religion does not affect their ability to do the job)
- A mandatory retirement age for pilots and bus drivers for safety reasons
- An employer requiring an applicant to be bilingual, where it was essential to do the job
Examples of non-valid BFOQ exceptions
By contrast, here are some situations where a BFOQ doesn’t apply:
- Catering to customer preference e.g., hiring only female flight attendants
- Rejecting an applicant because of their strong accent—this may amount to national origin discrimination
- Where it’s unsafe for females to work late-night shifts alone
- Where the employer would need to build separate facilities for female employees
- Requiring a younger person because the job involves heavy lifting
A bona fide occupational qualification is an exception to the general prohibition against discrimination in the workplace, allowing employers to factor sex, religion, national identity, or age into employment-related decisions.
BFOQs are very limited in their application and are rarely successful as a defense against a discrimination claim. They only apply where a characteristic is essential to performing the duties of the job and is necessary for the business operation.
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