The BFOQ, or Bona Fide Occupational Requirement, is a defense employers can raise in response to workplace discrimination claims alleging disparate treatment under Title VII, the PDA and the ADEA. An employer can completely avoid liability for these types of claims if it successfully demonstrates that religion, sex, age, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise. Note that “race” is not an acceptable basis for a BFOQ, although there is some debate as to whether it may be possible to assert a race-based BFOQ defense in instances where actors must portray characters of a certain racial background.
BFOQs Allow Employers to Hire People Based on Normally Prohibited Characteristics
In certain narrow circumstances, it is acceptable for employers subject to federal discrimination laws to offer jobs only to people of a certain gender, religion, age or national origin. When these characteristics are reasonably necessary to perform the main duties of a job, they are a bona fide occupational qualification, or BFOQ. The BFOQ exception to federal discrimination laws is a very narrow one, meaning that courts will look very closely at the nature of the employer’s business and the requirements of the job itself to determine whether limiting a job to select classes is truly necessary to the operation of the business.
BFOQs have been found acceptable only under rare circumstances. For example, situations involving privacy concerns could justify hiring only women as ladies’ rest room attendants. For religious-run businesses, such as a Catholic-run hospital, hiring only Catholics for policy-making level positions is acceptable. However, when applied to hiring low-level employees, such as janitorial staff, such a BFOQ would not be accepted. Situations which involve serious safety concerns can also justify a BFOQ. For example, a policy of hiring only men for close-contact positions in an all-male maximum security prison (to avoid the risk of sexual assault for female employees) has been upheld as a valid BFOQ.
Issues of pure “customer preference” will not support a BFOQ. For example, an airline could not hire only female flight attendants, as the basic nature of the airline business is transportation, not titillation. Hooters restaurants have come under fire for hiring only female servers by claiming that entertainment and a sexy atmosphere is an essential part of its business. It is far more likely that a court would consider “food service” to be the core of Hooters’ business. The fact that Hooters typically settles lawsuits brought by men who challenge its hiring practices indicates that it, too, suspects that gender is not a valid BFOQ for its wait staff positions.
Why Isn’t There a BFOQ Exception to the Americans With Disabilities Act?
One would think that the ADA would allow a BFOQ defense, as a person’s disability can certainly affect his or her ability to perform certain jobs safely — for example, people with vision impairments who apply for driving positions. However, because the ADA only protects “qualified” people with disabilities from discrimination, it essentially has a BFOQ defense built into its own language. The difference in ADA cases is that the burden is on the employee to prove that he is qualified despite his disability, as opposed to cases in which a BFOQ defense applies, wherein the employer bears the burden of proof.
Why Is There No BFOQ Defense to Race-Based Discrimination Claims
Race discrimination claims are not included in Title VII’s BFOQ exception. Because race discrimination claims brought under Section 1981 follow Title VII’s standards, there is no BFOQ defense to race discrimination claims brought under that law, either.
It is assumed that “race” was specifically excluded from BFOQ defenses because of Congress’ belief that race can never be a reasonably necessary requirement for any position. There is speculation in the legal community that race may be a valid BFOQ for certain acting jobs, such as where a white historical figure is being portrayed. However, thus far this remains only a theory. Given advances in makeup (such as Robert Downey, Jr. in “Tropic Thunder”) and digital manipulation of actors’ appearances (such as Jeff Bridges being altered to look younger in “Tron: Legacy”), one might wonder if even this argument for a race-based BFOQ will be a topic for debate much longer.