BFOQs: When Discrimination Isn’t Discrimination
We all know by now that discrimination in the workplace is illegal. However, there are times when you actually can, legally discriminate. This is when the basis for discrimination, is because of what is known as a bona fide occupational qualification (BFOQ).
What is a BFOQ?
In plain terms, a BFOQ is where someone must be of a certain age, physical condition, religion, gender, or nationality, in order to do the job safely, and in order to fulfill the requirements of the job.
Whether a position requires a BFOQ is an objective, not a subjective standard. In other words, the fact that you want someone of a certain gender, or just because you subjectively think someone of a given age is better for the job doesn’t matter—what matters is objectively, whether or not the position to be filled, truly needs someone of a very specific background.
People of certain backgrounds, need to be unable to do the job, or would otherwise put public safety at risk.
Some examples of jobs where there are BFOQs would include:
- The requirement that someone who is monitoring a kids locker room, be of the same sex as the children in the locker room
- The requirement that someone advertising a male product, be male, in order to appeal to male buyers, and to display or use the product properly
- The requirements that a teacher at a religious school, or someone who works at a religious organization, be of a certain religion
- The requirement that’s someone who will have to lift, show that they can carry the required amount to do the job, which may by definition eliminate people of certain sexes, builds, or backgrounds
- The requirement that people who may have physical disabilities of a certain nature, not be allowed to serve as nurses, who are exposed to diseases, or who must be able to lift and carry infirm patients
Remember that the BFOQ must directly relate to the job. So, for example, if you ran an all-boys school, you certainly may need a male supervisor in the male PE locker room. However, there is no reason why all of your teachers would need to be male.
Be Careful With Gender Discrimination
Note that the United States Supreme Court has said that discriminating on the basis of gender in the workplace will often not be tolerated, and the BFOQ defense is “narrow.” When it comes to gender, sex discrimination must be “reasonably necessary” to the operation of the business. Restaurant chain Hooters claimed, and won, on a BFOQ defense, when it defended its practice of hiring only female serving staff.
The BFOQ defense is not permission to discriminate, and plenty of businesses have found themselves in trouble, thinking they had a bona fide BFOQ defense, when in fact they did not.
Get help with your employment and labor law questions and problems. Call the West Palm Beach employment law attorneys at Pike & Lustig today.