BFOQ Defense

 

Facially Discriminatory Policies/Practices: BFOQ

Making an employee decision can be difficult and must be done 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).

Making an employment decision based on the protected class characteristic of a candidate is called disparate treatment.

An employer 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 require that a BFOQ defense (religion, sex, or national origin) on bona fide occupational qualification “reasonably necessary to the normal operation of a particular business or enterprise. Regardless of alleged need, the BFOQ defense is not available for policies that discriminate based on race or color.

“Reasonably necessary” can be misinterpreted as a loose, general requirement. 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.

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.

Public safety BFOQs must be defensible because particular protected class characteristics are necessary to protect others. Fitness or strength requirements are example.

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.