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Understanding the BFOQ Defense in Discrimination Cases


As a business, you probably are aware of the dangers of discriminating, whether as to race, health/disability, religion, gender, or nationality. But in some cases, in some industries, there may be some instances where you feel like you have to be a bit discriminatory—not in a mean way, but because your particular industry is one that isn’t appropriate for what would otherwise be protected classes.

The BFOQ Defense

This is called a bona fide occupational qualification (BFOQ). It means that there is something about a job, that requires that the worker be of a certain religion, be of a certain age, or gender (rarely if ever will there be a job that legitimately only requires a certain race). It is often used as a defense to discrimination claims in employment.

Where a BFOQ exists, an employer can discriminate, to some extent. But the question of whether a job qualification is actually a BFOQ, is not up to the employer, or what the employer thinks and feels—it is an objective standard. So just because you think your position “needs someone young” or “needs a woman” or something of that nature, doesn’t give you permission to discriminate.

BFOQ Examples

There are cases where safety becomes a concern, and when it does, it may be a BFOQ to have someone of a given class in the job. Imagine, for example, someone who is supervising kids in a women’s locker room. That may be a job that has a genuine BFOQ, allowing the employer to only hire a woman.

The safety of the employee matters as well. So, someone with a disease that compromises their immune system, while otherwise protected by the Americans with Disabilities Act, could be disqualified from working in a setting where there are a lot of sick people, or where disease spreads easily, like a nursing home.

Emergency personnel, like police or EMT, can have strength or other physical tests, which may, in the aggregate, tend to favor men moreseo than women.

Although customer preference does not create a BFOQ, the restaurant chain Hooters, in a controversial supreme court decision, did win a case where it argued that women servers were an essential part of its business, allowing it to discriminate against male servers. Similarly, courts have held that businesses could use male or females only, to advertise or promote businesses or products that catered to certain genders.

Even when a BFOQ exists, it may be limited. So, for example, a religious school could argue that it is a BFOQ to have teachers be of the same religion as the school’s religion. However, that would not mean that the secretaries, janitors, or accountant, would have to be that religion as well.

Assuming you have a BFOQ allowing you to discriminate is a recipe for a lawsuit. Don’t make that assumption on your own. That’s a decision you want to discuss with your employment law attorney. Call the West Palm Beach commercial litigation attorneys at Pike & Lustig today.




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