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Lesson 03: Legal Aspects of Recruiting, Hiring, and Promotion

L03 Facially Discriminatory Policies/Practices: BFOQ Defense

Making an employee decision can be a difficult decision but is one that needs to be taken with an awareness about various concepts and provisions that prevent discrimination and promote equal opportunities. There are two things to consider within the area of employment law that address this: Disparate treatment and bona fide occupational qualification (BFOQ). Let’s look more into these below to better understand how discrimination is addressed in the workplace and the legal framework surrounding it.

Disparate Treatment

Making an employment decision based on a protected class characteristic is disparate treatment, which is defined as making employment decisions that are based on protected class characteristics  

For example, a Chinese restaurant might insist that its waitstaff be comprised of people whose ethnicity is Chinese because the goal is to provide an authentic dining experience. Also, that is what customers prefer. Seems easy enough and rational. The requirement would be facially discriminatory as only Chinese people would be considered.

Bona Fide Occupational Qualification (BFOQ) and Title VII

The employer’s defense for a facially discriminatory requirement is called a bona fide occupational requirement (BFOQ).

Title VII of the Civil Rights Act and the Age Discrimination in Employment Act define the BFOQ defense as follows:

It shall not be an unlawful employment practice for an employer to hire and employ . . . on the basis of his religion, sex, or national origin in those certain instances where religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business of enterprise. (42 U.S.C. 2000e-2(e)(1) (2017)

Regardless of alleged need, the BFOQ defense is not available for policies that discriminate based on race or color.

Title VII states a qualifier of “reasonably necessary to the normal operation” of a particular business. “Reasonably necessary” can be read as a loose, general requirement. Not so when applied by the Equal Employment Opportunity Commission (EEOC) and courts. A BFOQ must be defended as job-related and consistent with business necessity. Customer preferences that would eliminate some protected classes are not a basis for a BFOQ. Rather, the requirement is that, without the BFOQ, the business would be undermined. Let’s look at how one can recognize BFOQs in the next section.


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