Legal Discrimination in Four Letters: BFOQ
By: Robert A. Rhodes
M. Lee Smith Publishers Connecticut Employment Law Letter,
Can discrimination be legal? The short answer is yes. In this age of political correctness and an overabundance of litigation based on age and gender discrimination, don't you wonder if there are rules about the age of the person flying the airliner that you're sitting in? Or whether the law permits certain restaurants to hire only female waitresses ... or why you don't see 80 year old police officers running down the streets after purse snatchers? These are some of the everyday instances in which we observe blatant discrimination, but it seems to make sense. So how can such discrimination be legal?
These examples of Bona Fide Occupational Qualifications, otherwise known as BFOQ's. A BFOQ is a defense to acknowledged discrimination, usually based on the existence of a facially discriminatory policy, such as "individuals over the age of 50 shall not be hired as police officers." Title VII permits you to discriminate on the basis of "religion, sex, or national origin in those instances where religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business or enterprise." This narrow exception has also been extended to discrimination based on age through the Age Discrimination in Employment Act (ADEA). This exception does not apply to discrimination based on race.
Whether a particular policy amounts to a Bona Fide Occupational Qualification requires an analysis of the facts of each particular case. The EEOC does have a list of BFOQ's which it has recognized. However, just because a particular policy or rule does not appear on the EEOC's list, does not mean that the policy or rule cannot be a BFOQ. This is ultimately a factual determination for the court or jury.
In determining whether a discriminatory policy constitutes a BFOQ, one must first look at the particular job and what it requires. You must then look at the discriminatory policy and determine if it is necessary to performing the job. For example, the FAA has a rule which requires that airline pilots are not allowed to serve in the capacity of captain after reaching the age of 60. This rule is obviously based on the probability that a pilot's skills have deteriorated with age and that the safety of the crew and passengers depend most heavily on the captain. This rule only pertains to the position of captain and does not preclude pilots of 60 years of age or older from serving as flight engineers, because age is not a BFOQ for the position of flight engineer.
In claiming the defense of BFOQ, the employer has the burden of proving the discriminatory policy is a valid BFOQ. The employer must demonstrate "plainly and unmistakably" that its discriminatory employment practice meets the terms and spirit of the Title VII exception. In other words, you must demonstrate that a discriminatory practice is reasonably related to an essential operation of your business. There is no requirement that formal studies be conducted to ascertain the need for a BFOQ. A BFOQ can be demonstrated through the use of expert witnesses, empirical data or just plain common sense.
BFOQ in Age Discrimination Claims
The courts have developed a two step test for analyzing BFOQ defenses in dealing with policies which preclude a certain age group from a job. An employer must show that there is either (1) a substantial basis for believing that all or nearly all employees above a certain age lack the qualifications for the position in question; or (2) that reliance on an age classification is necessary because it is highly impractical for the employer to insure by individual testing that its employees will have the necessary qualifications for the job. These BFOQ's usually apply to jobs which involve driving, flying or physically demanding jobs.
BFOQ in Gender Discrimination Claims
While BFOQ's related to gender discrimination do not have a specific two step test, the analysis does require that the discriminatory practice is reasonably necessary to the normal operation of a particular business or enterprise. In other words, gender discrimination is valid only when the "essence" of the business operation would be undermined if the business eliminated its discriminatory policy.
For example, corrections facilities and mental institutions which maintain gender segregated wards usually have rules requiring at least one staff member of the same gender as the patients to always be on duty. This policy was found to be a valid BFOQ because the privacy rights of the individual patients necessitated that a staff member of the same sex be available to assist patients in toileting, showering and disrobing. Another example would be the argument that the essence or identity of a restaurant is based on its exclusive employment of female waitresses and bartenders, and the business would be undermined if it were forced to hire male waiters and bartenders.
Surprisingly, gender discrimination based on an employers concern for the safety of its female employees is not a recognized BFOQ. In that case, a battery manufacturer enacted a policy which prohibited women who were pregnant or capable of bearing children from being placed in jobs involving lead exposure. The purpose of this rule would be to protect against any risk of harm to fetuses which female employees might conceive. While this policy was well intended, it was found to be illegal because the policy was not reasonably necessary to the normal production of batteries. To put it another way, fertile women were as efficient in the manufacturing of batteries as anyone else.
How effective is the BFOQ defense?
The BFOQ is a defense which is very narrowly restricted to limited instances and should not be relied in most situations. In determining whether a discriminatory policy can be justified as a BFOQ, you must think about the nature of your business, the requirement of the specific job in question and whether the discriminatory practice is necessary to preserving the normal operation of your business and the essence of your business. Would Hooters be Hooters if the person taking your drink order were a 300 lb. man? Or would it become a nondescript hamburger joint? Does the safe operation of a school bus reasonably require that the drivers be under 65 years of age? Are drivers above this age more likely to get into accidents? Should male corrections officers in a female facility be limited to certain duties? Should police officers or firefighters be a certain age?
There is no single answer or test which can be applied to these various situations. Each and every situation must be examined individually, taking into account the many factors concerning the nature of the business, the goods or services to be provided and the duties and responsibilities of the job in question.
Reprinted with permission of publisher. First appeared in Connecticut Employment Law Letter (March 2002). For subscription information, call (800)274-6774.