L03 Grounds for Recognizing BFOQs

Courts have recognized three general grounds for establishing BFOQs: authenticity, public safety, and privacy. These are justifications that can potentially support a business’s need to discriminate based on certain protected characteristics in specific circumstances.

Watch the five minute four second video below that gives more information on disparate impact and BFOQs.

Public safety BFOQs must be defensible because particular protected class characteristics are necessary to protect others. An example is a BFOQ requiring males for certain prison jobs as there was a real potential of violent sex offenders attacking female guards and prison riots ensuing. Protection of others, and not a paternalistic goal of protecting women, was the alleged basis. Similarly, a policy that driver training for truckers must be conducted by trainers of the same gender as trainees based on experience with harassment would not qualify for BFOQ status. In fact, it would serve to prevent hiring female drivers.

Age restrictions and mandatory retirement can be BFOQs if employers establish that the risks posed by older employees are substantial and that more individualized means (i.e., regular medical exams) of identifying risks are not feasible. Examples include commercial airline pilots, whose mandatory retirement age is 65, and FBI Field Agents, who must retire at 57 with extensions to 60 if approved by the Director.

Next, let’s look at hiring criteria and how disparate impact needs to be considered when these are done.