Bona Fide Occupational Qualifications: What Are They and When Are They Legal?

Bona fide occupational qualifications (BFOQs) are qualities or attributes that employers can consider when hiring or retaining employees, even if they would normally be considered discrimination based on sex, religion, or national origin. BFOQs are an exception to the general rule that employers cannot discriminate on these grounds under Title VII of the Civil Rights Act of 1964 and other federal laws. However, BFOQs are very rare and must be reasonably necessary to the normal operation of the business or the safety of the employees. BFOQs do not apply to discrimination based on race or color.

In this article, we will explain what BFOQs are, how they are determined by courts and agencies, and what are some examples of BFOQs in different industries and occupations.

What is a BFOQ?

A BFOQ is a quality or attribute that is essential for performing a specific job function or fulfilling a legitimate business purpose. For example, being a Catholic priest may be a BFOQ for teaching at a Catholic seminary, or being female may be a BFOQ for working as a locker room attendant at a women's gym. A BFOQ is not a personal preference of the employer or the customers, nor is it a mere convenience or cost-saving measure. A BFOQ must be based on factual evidence and objective criteria, not stereotypes or assumptions.

How is a BFOQ determined?

A BFOQ is determined by applying a two-part test:

- First, the employer must show that the job function or business purpose is central to the essence or normal operation of the business. For example, providing religious education may be central to the essence of a religious school, or ensuring privacy and security may be central to the normal operation of a correctional facility.

- Second, the employer must show that there is no reasonable alternative to excluding members of a protected class from performing the job function or fulfilling the business purpose. For example, there may be no reasonable alternative to requiring Catholic priests to teach at a Catholic seminary, or female locker room attendants to work at a women's gym.

The burden of proof is on the employer to establish that a BFOQ exists. The courts and agencies that enforce anti-discrimination laws will scrutinize BFOQ claims very closely and narrowly construe them. The employer must provide factual evidence and objective criteria to support its claim, not mere opinions or beliefs.

What are some examples of BFOQs?

BFOQs are very rare and depend on the specific facts and circumstances of each case. However, some general categories of BFOQs that have been recognized by courts and agencies are:

1. Privacy: In some cases, employers may be able to justify sex-based discrimination based on privacy interests of customers or clients. For example, female nurses may be required for gynecological exams, or male guards may be required for pat-down searches of male prisoners. However, privacy interests must be genuine and substantial, not speculative or trivial.

2. Safety: In some cases, employers may be able to justify age-based discrimination based on safety concerns for employees or customers. For example, firefighters may be required for certain tasks that involve physical strength and endurance, or flight attendants may be required for evacuation procedures in case of emergency. However, safety concerns must be real and significant, not hypothetical or exaggerated.

3. Authenticity: In some cases, employers may be able to justify sex-, religion-, or national origin-based discrimination based on authenticity in artistic works or entertainment. For example, male actors may be required for playing male roles in movies or plays, or Jewish singers may be required for performing Jewish songs in concerts. However, authenticity must be integral to the artistic expression or purpose, not incidental or peripheral.

These are not exhaustive categories of BFOQs, nor are they automatic grounds for discrimination. Each case must be evaluated on its own merits and evidence. As always, it is recommended that you consult with your HR Attorney when evaluating your case.

Conclusion

Bona fide occupational qualifications are an exception to the general prohibition of discrimination based on sex, religion, or national origin under federal laws. However, they are very rare and must be reasonably necessary to the normal operation of the business or the safety of the employees. Employers who claim BFOQs must provide factual evidence and objective criteria to support their claims. Courts and agencies will scrutinize BFOQ claims very closely and narrowly construe them.