Bona Fide Occupational Qualification

A genuine occupational qualification (BFOQ) is a legal restriction on hiring and employing people based on their gender, religion, or national origin. To be considered legal, or “bona fide,” the qualifications must be related to the specific business’s required operations as well as the position’s essential job functions.

In other words, the BFOQ law allows for necessary employment discrimination based on gender, religion, or national origin if the operations of the specific business or the duties of the job position justify it.

The Bona Fide Occupational Qualifications rule is an exception to Title VII of the Civil Rights Act, which prohibits employment discrimination based on race, colour, religion, gender, or national origin.

What laws govern how employers can hire using BFOQs?

The law that establishes the illegality of employment discrimination is Title VII of the Civil Rights Act of 1964. Within that law, there is a statutory provision titled CM-625 Bona Fide Occupational Qualifications that includes an exception to Title VII’s “prohibition of discrimination based on gender, religion, or national origin.” The bona fide occupational qualification (BFOQ) exception acknowledges that “in some extremely rare cases, a person’s gender, religion, or national origin may be reasonably necessary to carry out a specific job function in an employer’s business or enterprise’s normal operation.”

Is Gender a Genuine Professional Qualification?

Gender is generally applicable to the BFOQ exception if only one gender is required to perform job duties.

The BFOQ exemption does not apply to the following:

  1.  Only one or two people of a specific gender
  2. Stereotypical depictions of a specific gender

Can religion be a BFOQ?

  1. Religion can only be a BFOQ if the very nature of the business is jeopardized by hiring someone who is/isn’t of a particular religion.
  2. To qualify for religious BFOQ, an employer must demonstrate that the job cannot be successfully performed by a member of another religion because it would interfere with normal business operations.

What Are Some Examples of Allowable BFOQ?

1)Airline pilots and bus drivers are required to retire at a certain age.

2)To perform their duties, church employees must be members of the denomination.

3)Models or actors who must demonstrate authenticity in a role.

As you can see, the scope of allowance for genuine occupational qualifications is quite limited, and race is never permitted as a BFOQ.

Here are some examples of invalid BFOQ claims for context:

  1. Females are incapable of performing the task.
  2. For women, the job is too dangerous or unpleasant.
  3. Even if the work does not require a specific gender to fulfil a job role, the employer or its managers, other employees, clients, or customers prefer males/females.
  4. There are no separate restrooms or changing rooms available.
  5. It is too difficult and time-consuming for qualified male and female job applicants.
  6. The job description states that the applicant must be Israeli-born and speak, read, and write fluent Hebrew.
  7. Because the job requires heavy lifting, someone younger is required.
  8. The business owner is a devout Catholic who refuses to hire a Scientologist.

 

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